accountability partners: legislated collaboration for health reform · 2015-07-21 · to write...

ACCOUNTABILITY PARTNERS: LEGISLATEDCOLLABORATION FOR HEALTH REFORM

Mark T. Morrell and Alex T. Krouse'

I. INTRODUCTION .................................... 226II. PATIENT ACCOUNTABILITY ................... ...... 236

A. Shifting Role ofPhysician-Patient Rela tionshio....... 237B. Accountability for Rising Patient Care Costs............ 239C Models of Cost Containment Before the Affordable

Care Act ............................. ...... 241D. Accountability to Patients for Cost Containment Under

Affordable Care Act....................... 244E. Toward Patient-Centered Medicine and Consumer

Driven Choices ........................ ..... 245F Patient-Centered Medical Home Model..... ..... 247G. Patient-Centered Outcomes Research Institute ....... 248H. Promoting Accountability in Personal Healthcare

Decisions ............................ ...... 249III. COMMUNITY ACCOUNTABILITY....................... 252

A. Community Health Centers ................... 254B. Transitioning Patients from Hospitals Back to the

Community . ........................ ......... 259C. Accountability of Exempt Hospitals to Their

Communities............................... 263IV. ACCOUNTABILITY TO GOVERNMENT .................. 268

A. Health Insurer Accountability............ ............. 269B. Fraud and Abuse Promoting Accountability ............. 275C Physician Accountability and Conflicts of Interest ... 280

V. ACCOUNTABILITY AMONG PROVIDERS ................ 284A. A Brief History-U S. Health System as a Fragmented

1 Mark T. Morrell is a healthcare attorney in Franklin,Tennessee. Mr. Morrell graduated from Ball State University with adegree in finance (1997), and from Regent Law School with a jurisdoctor (2001). He is licensed to practice law in Indiana, Virginia andWashington, D.C. Alex T. Krouse is a healthcare attorney with thefirm of Krieg DeVault, LLP, located in Mishawaka, Indiana. Mr.Krouse graduated from DePauw University with a degree in history(2008) and from Indiana University with both a juris doctor and aMaster in Health Administration (2012).

INDIANA HEALTH LAW REVIEW

Model. ............................ ...... 284B. Promoting Accountability Among Providers ............. 288C. Strengthening 'Primary Care"........ .......... 289D. Payment Models Promoting Accountability Among

Providers............................... 293E. Organizational Accountability ........... ..... 295

VI. CONCLUSION .......................... ....... 300

I. INTRODUCTION

The term "accountability partner" carries variousmeanings, depending on the context. It is sometimesassociated with weight loss and fitness, as depicted on thereality television show The Biggest Loser.2 In financialplanning, the term means someone who is responsible foroverseeing the spending of another.3 The term can refer toan individual who is assigned to assist a prisoner before theprisoner's release back into the general population. 4 In its

2 In 2013, NBC included The Biggest Loser in its lineup for itsfourteenth season in primetime television. See The Biggest Loser - AllBios, NBC, http://www.nbc.com/the-biggest-loser/about/ (last visitedDec. 26, 2013). As a spinoff to the television show, the websitehttp://www.biggestloser.com/ provides tips for sustaining weight loss,including use of accountability partners. See also AMY PARHAM, 10LESSONS FROM A FORMER FAT GIRL 41 (2010) (former contestant on TheBiggest Loser discussing use of an accountability partner). For otherexamples of accountability in weight loss and fitness, see HeatherCaliendo, Tulsa Tough Founder Peddles Ftness, J. REC. (Jan. 23, 2009),http://journalrecord.com/2009/01/23/tulsa-tough-founder-peddles-fitness/; Diane Carbonell, Weight Loss Tracker Program,LIVESTRONG.COM, http://www.livestrong.com/article/295435-weight-loss-tracker-program/#ixzz1dDn1w9ik (last updated Oct. 21, 2013).

3 See, e.g., Myriam DiGiovanni, FORUM Basks in Success ofSaveltUp Program and Gears Up for Next Year, CREDIT UNION TIMES(Nov. 18, 2009), http://www.cutimes.com/2009/11/18/forum-basks-in-success-of-saveitup-program-and-gears-up-for-next-year.

4 See, e.g., Lynn S. Branham, The Mess We're in: Fyve StepsTowards the Transformation of Prison Cultures, 44 IND. L. REV. 703,724 (2011).

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ACCOUNTABILITY PARTNERS

most general sense, the term "accountability partner"5

means a person who agrees to accept responsibility andaccount for another's actions with the purpose of achievingspecific, identifiable behavioral goals such as abstinence,temperance, financial stewardship, or avoidance ofaddictions.6

Following enactment of the Patient Protection andAffordable Care Act (the "Affordable Care Act") in March

6 Our description of the term "accountability partner"incorporates a portion of the dictionary definition of the word"accountability." Accountability Definition, MERRIAM-WEBSTER,http://www.merriam-webster.com/dictionary/accountability (last visitedAugust 15, 2013) ("the quality or state of being accountable; especially:an obligation or willingness to accept responsibility or to account forone's actions.").

6 Carol Sanger, Infant Safe Haven Laws: Legislating in theCulture of Life, 106 COLUM. L. REV. 753, 816-817 (2006) ("[M]emberswear silver rings 396 and exchange pledges of abstinence with"accountability partners."); Karen Crouse, The Clean and Sober BattingChampion, N.Y. TIMES, Oct. 30, 2010, at D1 (discussing Josh Hamilton'sbattle with temptation regarding drugs and alcohol and his reliance on"a great accountability partner on the road"); John Leland, The OtherPorn Addicts, N.Y. TIMES, May 3, 2010, at A13 (use of a workbook that"emphasizes prayer, Christian fellowship and the use of 'accountabilitypartners' to hold the users to high standards of abstinence"); MichelleSingletary, Sink Your Teeth into a Fast, A Financial Fast, That Is-Three Weeks of Buying What You Need but Forgoing the Things YouMerely Want, WASH. POST, Jan. 3, 2010, at G01, ("men and women whoare good stewards over their personal finances become accountabilitypartners for members who are struggling"); Stephanie Simon, Learningto Write Their Love, L.A. TIMES, Nov. 24, 2005, at Al ("Manycongregations assign men "accountability partners" to keep them ontrack in love and life."); Jill Sundby, State Bar News: At the AnnualMeeting: McShane's Helping Montana Lawyers Tune Up Their Lives'Anthems, 26 MONT. LAw. Oct. 2000, at 18, 20 ("Set up a timeline andhave an accountability partner to see that you do it."); Michael Staver,Nine Good Ways to Avoid Burnout, PRINCIPAL'S REP., May 2006, at 9, 9("Get an 'accountability partner' to help you stay focused."); Ben G.Pender II, Symposium: Financial Compliance, Regulation, and RiskManagement: Invigorating the Role of the In-House Legal Advisor asSteward in Ethical Culture and Governance at ClienthusinessOrganizations: From 21st Century Failures to True Calling, 12 DUQ.BUs. L.J. 91, 124 (2009) ("The legal advisor as truth-teller is not thepejorative tattletaler/whistleblower. Rather, such a counsel is a trustedadvisor, team player, and accountability partner.").

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2010,7 the popular discussions and attention-grabbingheadlines8 contained within the 400,000 words and 900pages9 of laws and regulations centered around a fewrepeated, contested issues. Pundits and politicians debatedthe merits of the "individual mandate," which requiresindividuals to purchase health insurance and threatensfinancial penalties for those who refuse.10 Americans were(and continue to be) philosophically divided about whetherindividual consumers should be required to obtain healthinsurance." Many question whether the government has

7 Patient Protection and Affordable Care Act of 2010, Pub. L. No.111-148, 124 Stat. 119-1025 (2010) (amending Title XVIII of the SocialSecurity Act, 42 U.S.C. § 1395 et seq., by adding new § 1899) wasamended by the Health Care and Education Reconciliation Act of 2010,Pub. L. 111-152, 124 Stat. 1029-84 (2010). The final amendedlegislation will be referenced throughout this article as the "AffordableCare Act."

8 See, e.g., Edward Zelinsky, The Individual Mandate Won'tWork, HUFF POST POLITICS: THE BLOG (July 3, 2012, 1:16 PM),http://www.huffingtonpost.com/edward-zelinsky/the-individual-mandate-wo b_1646791.html; Nina Owcharenko, The Case AgainstObamacare: Health Care Policy Series for the 112th Congress,HERITAGE FOUND. (Nov. 9, 2010), http://thf media.s3.amazonaws.coml201 1/pdflTheCaseAgainstObamacare.pdf- Lee Sheppard, TheUnconstitutional Individual Mandate, FORBES (Sept. 30, 2010, 4:00PM), http://www.forbes.com/2010/09/30/health-care-mandate-opinions-columnists-lee-sheppard.html; but see, e.g., Laura Chapin, RepublicansAre Hypocrites on Healthcare Individual Mandate, U.S. NEWS: NEWSOPINION (Dec. 17, 2010), http://www.usnews.com/opinion/blogs/laura-chapin/2010/12/17/republicans-are-hypocrites-on-healthcare-invidual-mandate.

9 Varying public reports about the length of the Affordable CareAct ranged from 900 to 2700 pages and from 300,000 to 420,000 words.See, e.g., Tom Giffey, Is 'Obamacare' Really That Long?, LEADER-TELEGRAM (July 17, 2012, 2:01 PM),http://www.leadertelegram.com/blogs/tom__giffey/articlec9flfa54-d041-11el-9d01-0019bb2963f4.html.

10 26 U.S.C. § 5000A (2013). Subtitle F of the Affordable Care Actis aptly titled in common accountability terms: "Shared Responsibilityfor Health Care."

11 In two separate 2012 Gallup polls, approximately half ofAmericans supported the Affordable Care Act, and approximately halfwould like to see it overturned. See Lydia Saad, Americans Issue SplitDecision on Healthcare Ruling, GALLUP POLITICS (June 29, 2012),

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the constitutional authority to require an American to buyhealth insurance. 12

When the United States Supreme Court effectivelyupheld the individual mandate under the federalgovernment's authority to enact a tax, it affirmed thatAmericans would be held accountable for obtaining theirown health insurance.13 The Supreme Court decided thatalthough the individual mandate is impermissible under theConstitution's Necessary and Proper Clause,14 therequirement for nearly all Americans to secure insurancebeginning in 2014 is permissible under Congress's taxingauthority.1s Despite the finality of the Supreme Court'sdecision, the ruling did not eliminate the ongoing debateabout the merits of the Affordable Care Act or theconstitutionality of the individual mandate.' 6 The

http://www.gallup.com/poll/155447/Americans-Issue-Split-Decision-Healthcare-Ruling.aspx?utmsource=alert&utmmedium=email&utmcampaign=syndication&utmcontent=morelink&utmterm=All%20Gallup%20Headlines%20-%2OPolitics; Jeffrey M Jones AmericansDivided on Repeal of 2010 Healthcare Law, GALLUP POLITICS (Feb. 27,2012), http://www.gallup.com/poll/152969/Americans-Divided-Repeal-2010-Healthcare-Law.aspx.

12 See e.g., Terence P. Jeffrey, Sen. Hatch QuestionsConstitutionality of Obamacare: If Feds Can Force Us to Buy HealthInsurance 'Then There's Literally Nothing the Federal GovernmentCan't Force Us to Do,' CNSNEWS.COM (Nov. 1, 2009),http://cnsnews.com/node/56447. Id.; see also William Dunkelberg, TheSupremes Deal A Blow To Small Business, FORBES (June 28, 2012, 5:48PM), http://www.forbes.com/sites/groupthink/2012/06/28/the-supremes-deal-a-blow-to-small-business/.

13 Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).14 Id. at 2592 ("[Tlhe individual mandate cannot be sustained

under the Necessary and Proper Clause as an essential component ofthe insurance reforms. Each of our prior cases upholding laws underthat Clause involved exercises of authority derivative of, and in serviceto, a granted power.)"

15 Id. at 2600 ("The Affordable Care Act's requirement that certainindividuals pay a financial penalty for not obtaining health insurancemay reasonably be characterized as a tax. Because the Constitutionpermits such a tax, it is not our role to forbid it, or to pass upon itswisdom or fairness.")

16 See, e.g., Jason Fodeman, The New Health Law: Bad forDoctors, Awful for Patients, INSTITUTE FOR HEALTHCARE CONSUMERISM,http://www.theihcc.com/en/communities/policylegislation/the-new-

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continued existence or possible repeal of the Affordable CareAct was central to the 2012 Presidential election.17

In connection with the individual mandate, theAffordable Care Act established a federal healthcareinsurance exchange to be a marketplace for making low-costinsurance available to all.18 In other words, those who arebeing held accountable for buying insurance coverage wouldbe offered the opportunity to obtain insurance from theseexchanges at an affordable rate. In this way, thegovernment is holding itself accountable to the uninsuredconsumer. The insurance exchanges, which must beoperating in states by January 1, 2014, are expected to be aprimary way that the previously uninsured will be able toaccess affordable insurance coverage to comply with theindividual mandate.' 9 While the exchanges will be a majorway that as many as thirty million people will obtain

health-law-bad-for-doctors-awful-for-patie gnl7yOlk.html (last visitedDec. 27, 2013).

17 Ezra Klein, The Most Important Issue of This Election:Obamacare, WASH. POST: WONKBLOG (Oct. 26, 2012, 11:13 AM),http://www.washingtonpost.com/blogs/wonkblog/wp/2012/10/26/the-most-important-issue-of-this-election-health-reform/ ("A vote for Obamais a vote for the law to take effect and for 30 million Americans to gethealth insurance they won't get otherwise. A vote for Romney is a votefor the law-and its spending and its taxes-to be repealed. There arefew elections in which the stakes are so clear."); Sara R. Collins et al,Health Care in the 2012 Presidential Election, COMMONWEALTH FUND 9(2012), http://www.commonwealthfund.org/~/media/Files/Publications/Fund%20Report/2012/Oct/1636_Collins-hlt-care_2012-presidentialelectionFINALCPIrevised_10_02_2012.pdf ("With each candidateoffering fundamentally different visions for the nation's health caresystem, this fall's presidential election provides a stark choice for U.S.voters.").

18 The insurance exchange legislation is found at Subtitle D, PartII, § 1311 of the Affordable Care Act. The title to Part II of Subtitle Dacknowledges the accountability of insurance cost savings "ConsumerChoices and Insurance Competition Through Health BenefitExchanges."

19 See generally Joel M. Hamme et al., Health InsuranceExchanges Under the Affordable Care Act: A Primer, 6 J. HEALTH &LIFE Scl. L., June 2013, at 35.

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insurance, 20 the majority of people overall will continue toget coverage from their employers. 21

Two kinds of insurance exchanges are authorized underthe Affordable Care Act: (i) exchanges for individuals and(ii) Small Business Health Options Program ("SHOP")exchanges for small business owners. 22 States haveauthority to decide whether to operate a single exchange tocover both types of services, or to operate interstateexchanges, or to operate exchanges in coordination with thefederal government. 23 If a state elects not to establish anexchange or is unable to have an operational exchange byJanuary 1, 2014, the federal government will operate anexchange for that state. All plans featured on the exchangemust cover an 'essential' minimum benefits package thatmust include ten categories of benefits specified in theAffordable Care Act. 2 4 "In a sense, the exchanges aredesigned to function as a marketplace for health insurancewhere individuals and small businesses can comparisonshop and have ready access to pricing and coverageinformation."25

Similarly divisive was the requirement that largeemployers offer insurance to their employees or pay a

20 CBO's Analysis of the Major Health Care Legislation Enacted inMarch 2010 Before the H. Subcomm. on Health, 112th Cong. 17 (2011)(statement of Douglas W. Elmendorf, Director), available atwww.cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/docl2119/03-30-healthcarelegislation.pdf.

21 Alberto R. Gonzales & Donald B. Stuart, What Implications Willthe Supreme Court's Taxing Power Decision Have on the Goals of theAffordable Care Act and HealthcareS 6 J. HEALTH & LIFE SCI. L.(SPECIAL ISSUE) 189 (2013) ("For many Americans, the mandate likelywill have little impact, as most people will have health insurance fromtheir employer or be covered under a government or public program.Ultimately, about 1 in 10 Americans subject to the mandate will need todecide whether to obtain health insurance coverage or pay thepenalty.").

22 Patient Protection and Affordable Care Act of 2010, Pub. L. No.111-148, § 1311(b), 124 Stat. 119-1025 (2010) (codified as amended at 42U.S.C. § 18031(b) (2013)).

23 Id. § 1311 (codified as amended at 42 U.S.C. § 18031 (2013)).24 Id. § 1302.25 Hamme, supra note 19, at 35.

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penalty, known as the so-called "employer mandate."26

Because health insurance coverage is provided by employersfor most individuals, and because larger employers are ableto negotiate better insurance prices and spread risks morebroadly than individuals, the employer mandate wasdeveloped as an accountability tool to discourage employersfrom sending their employees into the newly-formed healthinsurance exchanges. Employers with more than fiftyemployees will pay a penalty if an employee receives afederal subsidy to purchase insurance through a healthinsurance exchange. 27 Opponents of the employer mandatehave suggested that such a requirement will havesubstantial effects upon employment.28 After ongoingdebate about the employer mandate, on July 1, 2013, theObama Administration announced that it is delaying amajor provision in the healthcare overhaul, putting off until2015 a requirement that many employers offer healthinsurance.29

26 Patient Protection and Affordable Care Act of 2010 §§ 1511-15(codified as amended at 29 U.S.C. § 218a-b (2013), 26 U.S.C. §§ 125,4980H, 6056, 6724 (2013)).

27 Patient Protection and Affordable Care Act of 2010 § 1513(codified as amended at 26 U.S.C. § 4980H (2013)).

28 See, e.g., Nadia Masri & Sharon F. Fountain, Health CareReform: What the Employer Mandate Means, 31 TAx MGMT. WKLY. REP.897 (2012); James A.J. Revels, What Effect Will Health Reform LawHave on Businesses and the US. Economy, PHYSICIANS NEWS DIG.(Aug. 21, 2012, 8:38 AM), http://www.physiciansnews.com/2012/08/21/what-effect-will-health-reform-law-have-on-businesses-and-the-u-s-economy/; Mark Trumbull, Health-Care Reform Law- How SupremeCourt Ruling Affects Families, CHRISTIAN SCl. MONITOR (June 27, 2012),http://www.csmonitor.com/USA/DC-Decoder/2012/0627/Health-care-reform-law-How- Supreme- Court-ruling-affects-families (last visited Dec.27, 2013).

29 INTERNAL REVENUE SERV., DEP'T OF THE TREASURY, NOTICE2013-45, TRANSITION RELIEF FOR 2014 UNDER §§ 6055 (§ 6055INFORMATION REPORTING), 6056 (§ 6056 INFORMATION REPORTING) AND4980H (EMPLOYER SHARED RESPONSIBILITY PROVISIONS) (2013); Seealso, e.g., JANEMARIE MULVEY ET AL., R43150, DELAY INIMPLEMENTATION OF POTENTIAL EMPLOYER PENALTIES UNDER ACA,CONG. RESEARCH SERV. (July 22, 2013),http://www.fas.org/sgp/crs/misc/R43150.pdf, Avik Roy, White House ToDelay Obamacare's Employer Mandate Until 2015, Far-Reaching

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Amidst the headlines and debates about the individualmandate, insurance exchanges, the employer mandate andother publicized aspects of healthcare reform such asMedicaid expansion,30 a significant element of the reformlegislation involves less-discussed and less publicly disputed(but perhaps no less contentious) provisions. Many of theprovisions in the Affordable Care Act receiving less publicscrutiny focused on the systemic goal of providing betterhealthcare more efficiently, often referred to generally as"accountable care." 31 Conceptually, there is generally lessdebate about this goal because there is more agreementabout the goal of improving healthcare and reducing overallcosts, which is the commonly understood goal of accountablecare.

While party lines are drawn primarily upon the morenewsworthy elements of the Affordable Care Act, the dailyissues facing healthcare providers and patients directlyinvolve many of these lesser-known, and sometimes lesserunderstood provisions. 32 Many of these less-publicized

Implications For The Private Health Insurance Market, FORBES (July 2,2013, 6:21 PM), http://www.forbes.com/sites/theapothecary/2013/07/02/white-house-to-delay-obamacares-employer-mandate-until-2015-far-reaching-implications-for-the-private-health-insurance-market/. Buteven the delay of the effective date of the provision has been subject todebate. See Fred Lucas, Congress Debates if Obama Could UnilaterallyDelay Employer Mandate, CNSNEWS.COM (July 24, 2013, 9:09 AM),http://www.cnsnews.com/news/article/congress-debates-if-obama-could-unilaterally-delay-employer-mandate#sthash. Qro5L8Jb.dpuf.

30 Where the States Stand on Medicaid Expansion, ADVISORYBOARD COMPANY (Nov. 6, 2013, 5:02), http://www.advisory.com/Daily-Briefing/Resources/Primers/MedicaidMap.

31 See, e.g., Mark Shields, From Clinical Integration toAccountable Care, 20 ANNALS HEALTH L. 151 (2011); Elliott S. Fisher etal., Fostering Accountable Health Care, 28 HEALTH AFF. 169, 219 (2009).

32 Some of the less-publicized (and generally less controversial)examples in the Affordable Care Act beyond the individual mandate andinsurance coverage provisions include, for example, § 1003 (authorizingthe Secretary of the Department of Health and Human Services toreview insurance premiums for unreasonable increases); § 2601 (caringfor persons eligible for "dual eligibles' who are able to receive bothMedicare and Medicaid); § 2702 (prohibiting payments for inappropriatediagnoses and treatment); §§ 2704-2706 (projects to test bundledpayments, global payment systems, and pediatric accountable care

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topics surround the notion of accountability. Often, these"accountability" provisions engender wider support from aspectrum of political parties. Nearly everyone agrees thatthe healthcare system needs to be "fixed," but they disagreeon the mechanism or method to "fix" it. The AffordableCare Act offered several controversial proposals to revisethe system, but also contained within the Affordable CareAct are a large number of other provisions that promotegreater accountability for all participants within thesystem.

In its common meaning, accountability is an optionalactivity desired by the one seeking to be held responsible.In other words, the person being held accountable has madea choice to participate. However, under the Affordable CareAct, some accountability is optional, but much of theaccountability is in the form of legislated accountability. Aform of accountability will occur, or the refusing parties willface a penalty. The parties enter into the accountabilitypartnerships willingly at times and, sometimes, unwillingly.Either way, legislated accountability under the reformregime will drive care in the twenty-first century in theUnited States.

This article discusses how the Affordable Care Actpromotes, in some respects, requires physicians, hospitals,

organizations); § 3001 (value-based purchasing of services fromhospitals that meet performance standards); § 3006 (authorizing value-based payments to skilled nursing facilities, home health agencies, andambulatory surgical centers); § 3007 (payments adjusted based on costand quality of care); § 3008 (reducing payments for hospital-acquiredmedical conditions); § 3022 (shared savings for accountable careorganizations that meet quality and cost benchmarks); § 3023 (pilotprogram for bundled payments); § 3024 (testing payment incentives andservice delivery models for primary care); § 3025 (reducing payments forhospital readmissions of certain conditions); § 3140 (authorizingdemonstration projects of hospice program models); § 3403 (forming aMedicare Payment Advisory Board to "reduce the per capita rate ofgrowth in Medicare spending"); §§ 5001-5701 (incentives offered tostudents who enter primary care, nursing, geriatrics, public health, andallied health professions); § 6001 (tightening limitations on physicianself-referrals); § 6301 (creating an independent Patient-CenteredOutcomes Research Institute to study the effectiveness of medical care);§ 10606 (increasing penalties for health care fraud).

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ancillary providers, patients, and managed care providers tobecome accountability partners, often with each other,sometimes with their communities, the government, andtheir patients. Depending on the context, the accountabilitypartners change. However, in the grand scheme ofhealthcare, accountability is expected and is the method forpursuing the intention of the Affordable Care Act. 3 3

Attempts have been taken by other authors in theUnited States and internationally to discuss accountabilityprior to the Affordable Care Act in the context ofhealthcare. 34 This article cannot, and is not intended to be,a comprehensive description of every way in which variousparties are "accountability partners" under the AffordableCare Act. Rather, the goal of this article is to provide anoverview of the manner in which legislated accountability(particularly the less-publicized provisions of the AffordableCare Act) will be the method by which the United Stateshealthcare system collectively will pursue the triple aimsthat Donald Berwick notably identified during his stint asChief of the Center for Medicare and Medicaid Services:

1. improving healthcare for individuals;2. improving healthcare for populations; and3. reducing per-capita cost of healthcare.35

33 See Daniel R. Levinson, A New Era of Medicare Oversight, 15 J.HEALTH CARE L. & POL'Y, 249, 262 (2012) ("As Medicare adjusts to thenew landscape, it will be critical for program officials and providers toplace a sharp focus on ensuring accountability and transparency in thedesign and operation of these new programs.").

34 See, e.g., Patrick J. Monahan, Chaoulli v. Quebec and theFuture of Canadian Health Care: Patient Accountability as the "SixthPrinciple" of the Canada Health Act, C.D. HOWE INST. (Nov. 29, 2006),http://www.cdhowe.org/pdf/benefactorslecture_2006.pdf, K J Woods, ACritical Appraisal of Accountability Structures in Integrated HealthCare Systems, SCOTTISH HEALTH SERVS. POL'Y F. (Sept. 2002); Ezekial J.Emmanuel & Linda L. Emmanuel, What is Accountability in HealthCare., ANNALS INTERNAL MED., Jan. 15, 1996, at 229.

35 See, e.g., Donald M. Berwick et al., The Triple Aim: Care,Health, and Cost, 27 HEALTH AFF., May 2008, at 759, available athttp://content.healthaffairs.org/content/27/3/759.full.pdf.

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The triple aims have been identified as the systemic goalof healthcare in the United States. This article considershow the method of bringing about systemic changes to theentire healthcare delivery system will be accomplishedthrough various constituencies working together as"accountability partners." There will be familiaraccountability partners under the Affordable Care Act,along with some new partners who have not workedtogether often previously. And these accountabilitypartners, working together through legislatively-mandatedrelationships, will determine the ultimate success or failureof healthcare reform in the twenty-first century.

Part II will review how the Affordable Care Act requiresaccountability of providers to patients and of patients fortheir own care. Part III will discuss how the AffordableCare Act promotes community accountability. Part IV willdiscuss financial accountability of providers to thegovernment and third party payors. Part V will discussaccountability of providers among each other.

II. PATIENT ACCOUNTABILITY

The public, as well as most patients, are familiar withthe notion that a physician's first obligation is to "do noharm."3 6 This basic premise suggests that a healthcareprovider must use advanced education, knowledge and skillfor the benefit of another party, the patient, without addingrisk to the patient's condition. Under this modelhistorically, physicians were assumed by most patients to bedelivering medically appropriate care, and patients enteredinto a relationship of trust and vulnerability that placed thehealthcare provider in an immense position of power and

36 HIPPOCRATES, THE CORPUS, 1-2 (Conrad Fischer ed., 2008); seealso Karen H. Rothenberg & Lynn W. Bush, Manipulating Fate: MedicalInnovations, Ethical Implications, Theatrical Illuminations, 13 HOUS. J.HEALTH L. & POL'Y 1, 8 (2012) (quoting HIPPOCRATES, supra) ("Whereasthe Hippocratic Oath espoused the paradigm 'to do good or to do noharm' and Percival's 1803 Medical Ethics expanded on professionalvirtues to gain public trust, theatre often dramatizes the potential of thedisequilibrium in the power relationship between physician-scientistsand patient-participants.").

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responsibility. 37 Indeed, because the physician-patientrelationship requires the patient to place confidence andtrust in the physician, some courts "apply fiduciaryprinciples to enforce duties involving disclosure andinformed consent, patient confidences, and not withholdingor fraudulently concealing information patients or relatedthird parties are entitled to receive."38

Even if the healthcare provider is in a specialrelationship to the patient, what level of accountabilityshould the provider have for the patient's health outcome?At what cost should a provider be held accountable for theindividual health outcome of individuals and populations?Should a provider offer the best possible outcome to everypatient, every time, regardless of cost? And from theopposing viewpoint, what role do individual patients have interms of their own health, particularly when makinglifestyle decisions involving tobacco use, alcohol use, dietand exercise? How do these viewpoints work together?

Patient accountability cuts several ways. First,providers are incentivized under the Affordable Care Act tobe accountable to patients for clinical outcomes and costsavings. A number of patient-centered efforts have alsobeen initiated to give the patient a more central role in theprocess. However, patients are also now more accountablefor their own care efforts. Collectively, patientaccountability is central to the outcomes sought under theAffordable Care Act.

A. Shifting Role of Physician -Pa tien t Rela tionship

In recent decades, culminating with the Affordable CareAct, the paradigm for the physician-patient relationship hasshifted. For example, a patient is no longer just a patient

3 See generally Dayna Bowen Matthew, Implementing AmericanHealth Care Reform: The Fiduciary Imperative, 59 BUFF. L. REV. 715,746 (2011) ("The resulting vulnerability the patient accepts by placingherself at the mercy of the physicians' exercise of discretion and powercontrasts sharply with the superiority of medical knowledge andinformation the physician has.").

38 Id. at 727.

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subject to the instructions of a physician who must betrusted and whose medical decisions are determinative ofpatient care. An emerging model of physician-patientinteraction is affected significantly by the way healthcare ispaid, an approach which "turn[s] patients into consumers byplacing them, rather than physicians, insurers, or thegovernment, in the driver's seat for making medicalspending decisions."39 This gradual shift in orientation-from physician-centered care to patient-centered care-hasbeen well-documented. 40 The new model of patient care isto put the patient front and center. In fact, the very title ofthis type of care is known as "patient-centered" care. Thisis because "[t]he medical profession . . . is undergoing aprofound transformation with the imperative to delivermore patient-centered care to individuals and populations,improve quality, and reduce unnecessary costs and waste."41

While a primary goal of patient-centered care is toimprove clinical outcomes for patients, another equallyimportant purpose of patient-centered care is to achievegreater cost savings on a macro level by developing a system

39 See generally Mark A. Hall, The Legal and HistoricalFoundations of Patients as Medical Consumers, 96 GEO. L.J. 583, 587(2008) ("This consumer characterization is the emerging centerpiece ofhealth care policy. Informed by their doctors or by their own research,and activated by their own financial interest, people with consumer-driven health insurance are expected to determine which items ofhealth care are worth the cost and which are not, at each point ofpurchase in the health care delivery system.").

40 See, e.g., Austin S. Baldwin et al., Preferences for a Patient-Centered Role Orientation: Association with Patient-Information-Seeking Behavior and Clinical Markers of Health, 35 ANNALS BEHAV.MED. 80, 80-81 (2008) (studying patient preferences for patient-centeredcare); Klea D. Bertakis et al., Patient-Centered Communication inPrimary Care: Physician and Patient Gender and Gender Concordance,18 J. WOMEN'S HEALTH 539, 539-40 (2009) (stating that the mainmethodologies for measuring patient-centeredness are "self-reportedassessments . . . of the medical encounter and direct observation of theclinical encounter").

41 Paul V. Miles et al., Physician Professionalism andAccountability: The Role of Collaborative Improvement Networks,Pediatrics, 131 AM. ACAD. PEDIATRICS (SUPPLEMENT) S204 (June 1,2013), available athttp://pediatrics.aappublications.org/content/131/Supplement_4/S204.full.pdf.

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whereby patients are accountable for their own care andphysicians are accountable to patients for the outcomes andfor the costs of their care.

B. Accountability for Rising Patient Care Costs

The dominant model for healthcare payment historicallyin the United States is a "fee-for-service" model, wherebyphysicians care for their patients, and, then, bill accordingto the volume of services provided. 42 Bills are then payableby the patient, by a third-party commercial payor, or by agovernmental program, and sometimes bills are not paid atall and are written off as charity care. 43 Under this system,the more services provided by a physician, the greater therevenue (and the bigger the bill). Providers are, therefore,incentivized to increase their volume of services as a way toearn greater financial rewards. This model of fee-for-servicepayment has been challenged as lacking accountability topatients and to the overall system. 44

The exponential growth rate in healthcare costs in theUnited States has reached historic proportions. 45 The rate

42 MEDICARE PAYMENT ADVISORY COMM'N, REPORT TO THECONGRESS: PROMOTING GREATER EFFICIENCY IN MEDICARE 63-70 (2007),available at http://medpac.gov/documents/Jun07_EntireReport.pdf.

43 See Thomas L. Hafemeister & Joshua Hinckley Porter, Don'tLet Go of the Rope: Reducing Readmissions by Recognizing Hospitals'1duciary Duties to their Discharged Patients, 62 AM. U. L. REV. 513,576 n.31 (2013) ("Traditionally in a fee-for-service payment system, aperverse incentive exists for hospitals to not assist recently dischargedpatients, as hospitals can receive greater overall compensation ifdischarged patients relapse and return requiring more services."); seegenerally Ann Marie Marciarillet, Healing Medicare HospitalRecidivism: Causes and Cures, 37 AM. J. L. AND MED. 41, 72-73 (2011).

44 See generally Glen Cheng, The National Residency Exchange: AProposal to Restore Primary Care in an Age of Microspecialization, 38AM. J.L. & MED. 158, 160 (2012) ("The problems inherent in a fee-for-service reimbursement system, including the lack of quality control andthe unbridled ability of providers to determine their own salary, were asignificant factor in the rise of managed care organizations and the eraof regulated healthcare expenditures.").

45 Mark A. Hal & Carl E. Schneider, When Patients Say No (ToSave Money): An Essay on the Tectonics of Health Law, 41 CONN. L.

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of growth is higher than both the rate of inflation and thegrowth rate for national income.46 Between 1998 and 2009,the spending on healthcare doubled, and the numbers are solarge that they are difficult to conceptualize. 4 7 Although theAffordable Care Act was designed to reduce the exponentialincrease in healthcare costs, calculations prior to theenactment of the Affordable Care Act suggested that theamount of spending in 2019 is expected to double thespending level for 2008.48

One of the concerns with the rising cost of care is thatcost does not equal quality. Studies indicate that patientsdo not always get what they pay for because increasinghealthcare costs "do not appear to be correlated with betterquality."49 In fact, compared with other countries, the

REV. 743, 747 (2009) ("Medical spending has outstripped inflation fordecades, and for decades, attempts to restrain those costs have-essentially-failed."); see also CTRS. FOR MEDICARE AND MEDICAID SERVS.,DEP'T OF HEALTH & HUMAN SERVS., NATIONAL HEALTH EXPENDITURESAGGREGATE, PER CAPITA AMOUNTS, PERCENT DISTRIBUTION, ANDAVERAGE ANNUAL PERCENT GROWTH, BY SOURCE OF FUNDS: SELECTEDCALENDAR YEARS 1960-2009 tbl.1 (2009), available athttp://www.cms.gov/NationalHealthExpendData/downloads/tables.pdf,Eric Kimbuende et al., US. Health Care Costs: Background BriefHENRY J. KAISER FAM. FOUND., available athttp://www.losangelesdebtresource.com/files/2011/05/www.kaiseredu.org_health-care-costs.pdf (noting that healthcare expenditures haveoutpaced inflation and income growth).

46 CTRS. FOR MEDICARE & MEDICAID SERVS., DEP'T OF HEALTH &HUMAN SERVS., NATIONAL HEALTH EXPENDITURE PROJECTIONS 2009-2019 tbl.1 (2009), available athttp://www.cms.gov/NationalHealthExpendDatadownloads/proj2009.pdf.

4 7 Id.48 Id. at tbl.2.49 MEDICARE PAYMENT ADVISORY COMM'N, REPORT TO THE

CONGRESS: IMPROVING INCENTIVES IN THE MEDICARE PROGRAM 49, 53(2009), available athttp://www.medpac.gov/documents/Jun09_EntireReport.pdf see generally Christopher Smith, Between theScylla and Charybdis: Physicians and the Clash of Liability Standardsand Cost Cutting Goals Within Accountable Care Organizations, 20ANNALS HEALTH L. 165, 167-69 (2011); David A. Squires, ExplainingHigh Health Care Spending in the United States: An InternationalComparison of Supply, Utilization, Prices, and Quality, 10COMMONWEALTH FUND, Issues in International Health Policy, May2012, at 1, http://www.commonwealthfund.org/~/media/Files/

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United States spends more of its GDP on healthcare thanmany other nations, with questionable results in terms ofwhether better quality outcomes are achieved.so Arecurring question when examining various efforts orpayment models is whether higher quality of patient carecan lead to both higher quality and can also be delivered ata lower cost. "Whether viewed at the macro- ormicroeconomic level, healthcare costs are high and gettinghigher, and the burden on individuals and employers isbecoming increasingly heavy. These pressures serve as thegenesis for the many of the cost containment efforts withinthe health care sector."51

C. Models of Cost Containment Before the Affordable CareAct

Central to the debate about the merits of healthcarereform is whether a provider can lower cost and still providethe same quality healthcare, which is a fundamentalpremise of the Affordable Care Act. Even before theenactment of the Affordable Care Act, healthcare providerswere developing models of payment to promote high qualityand more efficiently priced care. These models typicallyinvolved prepaid health plans, where the provider acceptedfinancial risk for the medical outcomes of its enrollees. Theconcept of prepaid medical plans dates back as early as thenineteenth century, when similarly-situated groups ofworkers arranged to address the healthcare needs of theirgroups, such as the mining or railroad workers. 52

Publications/Issue%2OBrief/2012/May/1 595_Squires-explainingjhighhlt_carespendingintljbrief.pdf.

50 Karen Davis et al., Mirror, Mirror on the Wall. How thePerformance of the US. Health Care System Compares Internationally,2010 Update, COMMONWEALTH FUND, June 2010, at 2,http://www.commonwealthfund.org/-/media/Files/Publications/Fund%20Report/2010/Jun/1400_DavisMirrorMirroronthe wall_2010.pdf.

51 Smith, supra note 49, at 169.52 A Brief History of Managed Care, TUFTS MANAGED CARE

INSTITUTE (1998), www.thci.org/downloads/briefhist.pdf (last visitedJuly 18, 2013).

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More formal prepaid group plans emerged after WorldWar I, followed by the formation of a recognizable healthmaintenance organization 53 in the 1940s, when industrialistHenry J. Kaiser opened his plans to the public after WorldWar II (better known as Kaiser Permanente).54 TheAmerican Medical Association ("AMA") fought back againstthe emergence of HMOs, rejecting anything resembling thecorporate practice of medicine.5 5 As a result of thepushback against the new plans, the AMA was convicted ofviolating the Sherman Antitrust Act.5 6

In the 1980s HMO membership soared, whenemployers-the primary funding source for most privateinsurance in the United States-attempted to reduce thecost of their employees' healthcare.57 Employers oftencontinued to offer healthcare benefits but switched to HMOsor other forms of prepaid care because they were consideredmore cost efficient than traditional fee-for-service care.58

The model of prepaid health plans began to change inthe late 1990s and early 2000s as more Americans wereenrolled in preferred provider organizations ("PPOs"). TheMedicare Modernization Act of 200359 and similar policychanges that facilitate consumer-directed health plans

53 An HMO is "a healthcare system that assumes or shares boththe financial risks and the delivery risks associated with providingcomprehensive medical services to a voluntarily enrolled population in aparticular geographic area, usually in return for a fixed, prepaid fee."Glossory: H, BLUECROSS BLUESHIELD AsS'N, http://www.bcbs.com/glossary/?firstlet=H (last visited Dec. 27, 2013).

54 TUFTS MANAGED CARE INSTITUTE, supra note 52.55 Id.56 Sherman Antitrust Act, 26 Stat. 209 (1890) (codified as amended

at 15 U.S.C. §§ 1-7 (2013)); Am. Med. Ass'n. v. United States, 317 U.S.519 (1943).

57 See Martin Markovich, The Rise of HMOs, RAND CORP.,http://www.rand.org/content/dam/rand/pubs/rgs-dissertations/RGSD172/RGSD172.chl.pdf.

58 TUFTs MANAGED CARE INSTITUTE, supra note 52.59 Medicare Modernization Act of 2003, Pub. L. 108-173, 117 Stat.

2066 (2003) (codified as amended at 26 U.S.C. §§ 6103, 7213 (2013), 45U.S.C. § 231f (2013), and scattered sections of 42 U.S.C.).

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("CDHP")60-including health savings accounts6 ("HSA")and health reimbursement accountS62 ("HRA")-havecaused employers to switch from HMOs to PPOs. Just asemployers switched from traditional indemnity plans in the1980s and early 1990s, some scholars consider the moveinto CDHP as the first wave of consumerism in the twenty-first century. 63 CDHC appears to fix the problems left fromHMOs: consumers under CDHCs are incentivized to be cost-sensitive and shop for high-value services, while notsubjecting them to the financial risk of catastrophic illness.CDHCs allow consumers to be their own healthcaremanagers, which is designed to control costs and improvequality.

Out of this history of lowering costs and improvingquality, the accountable care organization" (or "ACO")developed, a model that is attributed to Dr. Elliot Fisher,Director of the Center for Health Policy Research atDartmouth Medical School.64 The concept of an ACO

60 The CDHP has a higher deductible, and the policy is based oneither a HSA or a HRA, in which individuals set aside pretax dollarsdesignated to cover routine care.

61 HSAs are tax-advantaged employee-owned savings accountsthat may be used to pay for qualified medical expenses (HSAs must bepaired with a high deductible health plan).

62 Health reimbursement accounts ("HRAs") are similar to HSAs,but they are owned and funded by employers and do not need to becoupled with a high-deductible plan (but often are).

63 Melinda B. Buntin et al., Consumer-Directed Health Care: EarlyEvidence About Effects On Cost And Quality, 25 HEALTH AFF. w516(2006), http://content.healthaffairs.org/content/25/6/w516.full.pdf.

64 Kip Sullivan, The History and Definition of the 'AccountableCare Organizations" PHYSICIANS FOR NAT'L HEALTH PROGRAM CAL.(Oct. 2010), http://pnhpcalifornia.org/2010/10/the-history-and-definition-of-the-"accountable-care-organization"/. Although the concept ofaccountable care had been around for quite some time, ACOs did notgain attention until 2006 and rapidly gained popularity with thepublishing of a number of articles by Dr. Fisher and others. The buzzaround ACOs reached its peak in 2009 with the term being used in all ofthe draft healthcare reform bills proposed by President Obama. JennyGold, Accountable Care Organizations, Explained, KAISER HEALTHNEWS & NPR (Jan 18, 2011, 8:21 AM),http://www.kaiserhealthnews.org/Stories/2011/January/13/ACO-accountable-care-organization-FAQ.aspx.

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developed in response to the steadily increasing healthcarecosts and the desire to improve Medicare and otherprivate/public insurance programs. 65

D. Accountability to Patients for Cost Containment UnderAffordable Care Act

The Affordable Care Act included a Medicare SharedSavings Program, authorizing contracts with ACOs.66ACOs are intended to coordinate patient care and improveclinical outcomes by linking providers who are accountableto the patients (and to each other) for achieving the goal ofcollaborative, efficient, cost-effective care. Shared savingswill be available to providers if they meet certain criteria,including standards relating to quality, reporting, andgoverning structure. The ultimate goals of ACOs are toimprove total cost, quality, and patient satisfaction. 67 ACOsare designed to keep patients healthy and out of intensivecare settings, while basing reimbursements on topperformance goals that drive improved outcomes and costeffectiveness.68 ACOs also hold providers accountable toone another for outcomes and cost containment, and thistopic is explored further in Part V below.

65 Fisher et al., supra note 31, 219-31.66 Patient Protection and Affordable Care Act of 2010, Pub. L. No.

111-148, § 3022, 124 Stat. 119-1025 (2010) (codified as amended at 42U.S.C. § 1395jjj (2013)).

67 See Jordan T. Cohen, A Guide to Accountable CareOrganizations, and Their Role in the Senate's Health Reform Bill,HEALTH REFORM WATCH (Mar. 11, 2010),http://www.healthreformwatch.com/2010/03/11/a-guide-to-accountable-care-organizations-and-their-role-in-the-senates-health-reform-bill/.

68 Jon Leibowitz, Chairman, Fed. Trade Comm'n, Remarks of FTCChairman Joe Leibowitz (As Prepared for Delivery), Antitrust inHealthcare Conference, Are Titanic Health Care Costs Sinking Us?What the FTC Is Doing to Keep Patients Afloat, FED. TRADE COMM'N 6-7(May 3, 2012), www.ftc.gov/speeches/leibowitz/120503antitrusthealthcare.pdf

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E. Toward Patient-Centered Medicine and Consumer-Driven Choices

The transition from a physician-patient relationshipwhere the physician is the center of the relationship, to apatient-centered approach where the patient is a consumerwho has a number of choices and personal autonomy, hasresulted in a number of other shifts. For example, "therelationship between patients and physicians was largelyunmediated before the end of the twentieth century"69, butnow patients have become consumers of healthcare servicesand health plans. 70 The doctrine of informed consentrecognizes the change in patient power as well.7 1

Patients have also progressed to become clients of theircaregivers and not merely wards or subjects. 72 This subtleshift in the way patients are perceived offers an increase ofpower in the relationship because "medical care is a service,like any other, and . . . patients are consumers who can

69 See Janet L. Dolgin, The Evolution of the "Patient": Shifts inAttitudes About Consent, Genetic Information, and Commercializationin Health Care, 34 HOFSTRA L. REV. 137, 140, 175-79 (2005). Seegenerally Mark A. Hall, The Legal and Historical Foundations ofPatients as Medical Consumers, 96 GEO. L.J. 583, 587 (2008) (statingthat healthcare initiatives "are meant to turn patients into consumersby placing them, rather than physicians, insurers, or the government, inthe driver's seat for making medical spending decisions").

70 Michael J. Ramdass et al., Question of Patients' Versus'Clients,' 21 J. QUALITY CLINICAL PRAC. 14, 14 (2001) (using the term"client" instead of "patient"); see generally Glen Cheng, The NationalResidency Exchange: A Proposal to Restore Primary Care in an Age ofMicrospecialization, 38 AM. J.L. & MED. 158 (2012); Mark A. Hall,Rethinking Health Law: The History and Future of Health Care Law:An Essentialist View, 41 WAKE FOREST L. REV. 347, 359 (2006).

71 Orna Rabinovich-Einy, See You Out of Court? The Role ofADRin Health Care: Escaping the Shadow of Malpractice Law, 74 LAW &CONTEMP. PROBS. 241, 247 n.19 (2011) ("In terms of patient rights, inthe 1970s, a series of court decisions made way for a new approachenshrining patients' right to make informed medical decisions and toview and correct their medical records, and delineated the care team'scorresponding duties.")

72 See, e.g., Kristen Madison, Patients as 'Regulators"?: Patients'Evolving Influence over Health Care Delivery, 31 J. LEGAL MED. 9, 15-21 (2010); Dolgin, supra note 69, at 175-79.

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choose who should provide medical services and even whatkind of services to purchase."73 In this way, patient-centered care:

suggests that patients' experiences as patientsare important and should be taken intoaccount, and that the law should recognize thevulnerability and suffering that illness cancreate and the dependency of the patient onothers for knowledge, skill, or care. This inturn suggests that greater attention should bepaid to the needs of the patient (beneficence)instead of merely the values of the patient(autonomy).74

With the increase of power, patients as consumers haveexpressed a desire to have more choices in terms ofhealthcare providers, insurance products, and election ofprocedures.75 And with more choices, patients become moreaccountable for their own care.

In connection with offering patients more choices, theAffordable Care Act emphasized the role of primary careand reduced reliance on specialty and emergency care. 76

73 Marc A. Rodwin, Patient Accountability and Quality of Care:Lessons from Medical Consumerism and the Patients' Rights, Women'Health and Disability Rights Movements, 20 AM. J.L. & MED. 147, 153-57 (1994).

7 Lois Shepherd, Different Ways to Understand Patient-CenteredHealth Law, 45 WAKE FOREST L. REV. 1469, 1470 (2010).

75 See generally Troy J. Oechsner & Magda Schaler-Haynes,Keepingit Simple: Health Plan Benefit Standardization and RegulatoryChoice Under the Affordable Care Act, 74 ALB. L. REV. 241 (2011);Deborah Haas-Wilson, Arrow and the Information Market Failure inHealth Care: The Changing Content and Sources of Health CareInformation, 26 J. HEALTH, POL., POL'Y. & LITIG. 1031, 1034 (2001)("When no information on quality is available prior to purchase, qualitydeteriorates to the lowest level in the market - a serious market failuresince mutually advantageous trades involving higher quality productsdo not take place.").

76 Karen Davis et al., How the Affordable Care Act WillStrengthen the Nation's Primary Care Foundation, 26 J. GEN. INTERNALMED. 1201 (2011), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3181291/pdf/116062011_Article_172O.pdf.

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The Affordable Care Act contains several importantprovisions in this regard, including availability forincreased payments to primary care providers, incentives todevelop modes of primary care delivery with medical homes,increased funding for primary care residency programs,opportunities for primary care providers to qualify forfederal loans and loan forgiveness, and expanded coverageof preventive care services.77

F Patient-Centered Medical Home Model

The Patient-Centered Medical Home ("Medical Home") isa care delivery model that has emerged as a method foraddressing the various considerations discussed above.78

Developed in concept by the American Academy ofPediatrics, the Medical Home is broadly defined as primarycare that is "accessible, continuous, comprehensive, family-centered, coordinated, compassionate, and culturallyeffective."79 Medical Homes offer patients greater input andchoice and involve patients in the decisions about their owncare.80 A Medical Home is designed to promote thecoordination of patient care by a family physician, who isresponsible for managing overall patient wellness. Thepatient's personal physician is familiar with the care for thepatient and, along with the patient's family and a team of

77 See generally Cheng, supra note 70, at 158.78 See Melinda K. Abrams et al., Can Patient-Centered Medical

Homes Transform Health Care Delivery, COMMONWEALTH FUND (Mar.27, 2009), http://www.commonwealthfund.org/Content/From-the-President/2009/Can-Patient-Centered-Medical-Homes-Transform-Health-Care-Delivery.aspx; see also Daniel Fields et al., Driving QualityGains and Cost Savings Through Adoption of Medical Homes, 29HEALTH AFF. 819, 823-25 (2010), available at http://trinity.edu/departments/healthcare/Content/FA10%20McCaughrin%20Articles/Fields,%20D..pdf.

79 See Abrams et al., supra note 78; Ad Hoc Task Force onDefinition of the Medical Home, Am. ACAD. OF PEDIATRICS, The MedicalHome, 90 PEDIATRICS 774 (1992), available athttp://pediatrics.aappublications.org/content/90/5/774.full.pdf.

80 See generally Lawrence G. Smith & Megan Anderson, NewDirections in American Health Care, 39 HOFSTRA L. REV. 23 (2010).

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practitioners, works to coordinate access and referralsacross medical specialties, hospitals, and nursing homes.

The Affordable Care Act includes grants to encouragespecialists to provide support services for primary careproviders operating within Medical Homes.8 1 The grantsavailable under the Affordable Care Act are designed toprovide support for Medical Homes that deliver preventivecare services, assist in managing chronic diseases, andpromote the development of patient care plans incollaboration with specialists and primary care physicians.82

The primary care providers are expected to meet regularlywith the care team, provide a plan of coordinated care foreach patient, and provide access to the patient's records asnecessary for coordinated treatment.83

G. Patient-Centered Outcomes Research Institute

The Affordable Care Act established a new, nonprofitcorporation, known as the Patient-Centered OutcomesResearch Institute (the "Institute"), to conduct comparativeeffectiveness research on medical interventions. 84 Thepurpose of the Institute is to assist patients to makeinformed healthcare decisions in collaboration withclinicians, purchasers, and policy-makers. The Institutewas established to further the quality and relevance ofevidence concerning the manner in which diseases,disorders, and other health conditions can effectively andappropriately be prevented, diagnosed, treated, monitored,

81 Patient Protection and Affordable Care Act of 2010, Pub. L. No.111-148, § 3502(a), 124 Stat. 119-1025 (2010) (codified as amended at 42U.S.C. § 256a-1 (2013)); see generally Stephen Zuckerman et al.,Incremental Cost Estimates for the Patient-Centered Medical Home,1325 COMMONWEALTH FUND - 7-10 (2009),http://www.commonwealthfund.org/-/media/Files/Publications/Fund%20Report/2009/Oct/1325_ZuckermanIncrementalCost_1019.pdf.

82 Patient Protection and Affordable Care Act of 2010 § 3502(c)(codified as amended at 42 U.S.C. § 256a-1 (2013)).

83 Id. § 3502(d)(1)-(3) (codified as amended at 42 U.S.C. § 256a-1(2013)).

84 Id. § 6301 (codified as amended at 42 U.S.C. § 1420e (2013)).

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and managed through research that considers variations inpatient subpopulations.8 5

Congress intended for the comparativeeffectiveness research initiative to develophard information about the comparativeeffectiveness of different medical products andservices. This initiative is one of a long line offederal initiatives to address the rising costs ofhealthcare, as well as obtain better value forhealthcare expenditures. The key question iswhether the governance and design features ofthe institute that PPACA created to overseethe initiative will enable it to succeed whereother federal efforts have faltered.86

This research is designed for patient-centered outcomesand helps people and their caregivers communicate andmake informed healthcare decisions, allowing their voices tobe heard in assessing the value of healthcare options.8 7 Thestructure of the Institute is unique as a private, non-profitentity governed by a board of directors appointed by theComptroller General. The statute specifically provides thatthe Institute is "neither an agency nor establishment of theUnited States Government" and is organized under theDistrict of Columbia Nonprofit Corporation Act.8 8

H Promoting Accountability in Personal HealthcareDecisions

Notwithstanding any of the other changes to the nation'shealthcare system under the Affordable Care Act,

85 Id. § 6301(d) (codified as amended at 42 U.S.C. § 1420e (2013)).86 Eleanor D. Kinney, Comparative Effectiveness Research Under

the Patient Protection and Affordable Care Act: Can New BottlesAccommodate Old Wine, 37 AM. J.L. & MED. 522, 524 (2011).

87 See Patient-Centered Outcomes Research, PATIENT-CENTEREDOUTCOMES RES. INST., http://www.pcori.org/research-we-support/pcor/(last updated Nov. 7, 2013).

s8 Id.

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individual responsibility remains a key to success. Anindividual's willingness and ability to follow through onannual physicals, participate in preventative wellnessactivities including appropriate screenings, and followingphysician-recommended treatments are essential to reducehealthcare costs and improve the nation's overall health.8 9

Consider this in light of the fact that 75% of all healthcarecosts can be attributed to chronic, preventable conditionsand diseases that are significantly affected by lifestylechoices such as tobacco use, alcohol abuse, poor eatinghabits, and physical inactivity.90

In the context of determining how to hold a patientaccountable for care, many other considerations must beconfronted and addressed. For example, are all patientsequally accountable, or are some patients held to a differentstandard because of their respective personal, social,economic, or other factors? What about patients. whogenuinely cannot understand the healthcare instructions oftheir providers?91 Also, how does the system address thosepopulations that historically have experienced higher ratesof healthcare problems than others?

For example, studies show that "racial and ethnicminorities tend to experience disproportionately high ratesof mortality, chronic and debilitating illnesses, andinfectious diseases, and they are less likely to receivecertain kinds of diagnostic testing, medical procedures, andmedication than non-minorities."92 And, "[t]he strange

89 See generally Smith & Anderson, supra note 80, at 23.90 DEP'T HEALTH & HuMAN SERVS., PREVENTION MAKES COMMON

"CENTS" 1 (2003), http://aspe.hhs.gov/health/prevention/prevention.pdf.91 Brietta Clark, Using Law to Fight a Silent Epidemic: The Role

of Health Literacy in Health Care Access, Quality, & Cost, 20 ANNALSHEALTH L. 253, 306 (2011) ("While it is certainly unfair to punish aphysician for a bad result brought about by a patient's disregard of thephysician's instructions, it seems equally troubling to hold patientsaccountable for information that is often not communicated in a clear orunderstandable way. To what extent can or should health literacy berelevant in helping courts make this distinction?").

92 INST. MED., UNEQUAL TREATMENT: CONFRONTING RACIAL ANDETHNIC DISPARITIES IN HEALTH CARE 2-3 (Brian D. Smedley et al., eds.2003), available at http://books.nap.edu/openbook.php?recordid=10260;see also Clark, supra note 91, at 317.

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history of race and class intersecting in U.S. medicine datesback to the antebellum period with medical experiments onenslaved women,"93 as well as "medical experimentation onvulnerable and often uninformed patients, includingilliterate men, children, and prisoners."94

Preventative care is a means by which patients areresponsible for proactively addressing potential healthconcerns before they are able to become major issues. Giventhe various considerations with respect to accountability ofindividual health decisions, the Affordable Care Actprovides generally for the creation of a National Prevention,Health Promotion, and Public Health Council (the"Council") to coordinate federal agencies and initiatives forpreventative wellness and public health.95 The Council isheaded by the Surgeon General and is responsible forsubmitting an annual report to the President and toCongress containing "a list of national priorities on healthpromotion and disease prevention to address lifestylebehavior modification (smoking cessation, proper nutrition,appropriate exercise, mental health, behavioral health,substance use disorder, and domestic violence screenings)and the prevention measures for the 5 leading diseasekillers in the United States."96

The Affordable Care Act encourages preventativewellness by mandating that insurance companies offer afree annual wellness visit and complete coverage, withoutcoinsurance, of services recommended in an insured's"personalized prevention plan" created by his or her

93 Michele Goodwin & L. Song Richardson, Patient Negligence, 72L. & CONTEMP. PROBS. 223, 230 (2009).

94 Id.95 Patient Protection and Affordable Care Act of 2010, Pub. L. No.

111-148, § 4001, 124 Stat. 119-1025 (2010) (codified as amended at 42U.S.C. § 300u-10 (2013)).

96 Id.; see generally NAT'L PREVENTION, HEALTH PROMOTION ANDPUB. HEALTH COUNCIL, NATIONAL PREVENTION STRATEGY: AMERICA'SPLAN FOR BETTER HEALTH AND WELLNESS (2011), available athttp://www.surgeongeneral.gov/initiatives/prevention/strategy/report.pdf.

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primary care provider. 97 In addition, many preventiveservices now are required to waive any coinsurancepayments that were previously required.98 For example, theAffordable Care Act requires health insurers to cover 100%of the costs of immunizations, pediatric preventive careservices, and Grade A or B preventive servicesrecommended by the United States Preventive ServicesTask Force without imposing any cost-sharing obligationson their insured.99

The goal of patient accountability is twofold: holdingproviders accountable for the health outcomes (and costs) ofpatients and holding patients accountable for their owncare. 100 As the perception of the physician-patientrelationship shifts, and as patients become more involved intheir own health through preventative care and lifestylechoices, providers will also be expected to be accountable topopulations of patients for health outcomes. Together, thismutual accountability is expected to create a systemicchange.

III. COMMUNITY ACCOUNTABILITY

The Affordable Care Act is designed to promotecommunity accountability. Indeed, several methods for.impacting care delivery in communities are part of theAffordable Care Act. For example, Community HealthCenters are being funded to offer community infrastructurewith the goal of addressing local healthcare needs,particularly for the poor and underserved. Programs forreducing hospital readmissions and assisting intransitioning patients from an acute care provider to a post-acute care provider are expected to aid in a patient'stransition from hospital to community. Also, exempt

97 Patient Protection and Affordable Care Act of 2010 § 4103(a)(codified as amended at 42 U.S.C. § 1395x (2013)).

98 Id. § 10406 (codified as amended at 42 U.S.C. § 1395](2013)).99 Id.100 See generally, Julie A. Muroff, Policing Willpower: Obesity as a

Test Case for State Empowerment of Integrated Health Care, 11 HOUS.J. HEALTH L. & POL'Y 47 (2011).

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hospitals are now held accountable to monitor local healthneeds and report their activities to address these needs, orface financial penalties.

At the heart of the notion of community accountabilityare more fundamental considerations: how can individualsand organizations be held accountable to theircommunities? Does the standard of accountability includethe entire community, or should access to care be availableonly to those who can afford it? What burden shouldinsurance companies, healthcare providers, and employerscarry with regard to the community's health? What aboutcaring for underserved populations? And perhaps mostcontroversially, what role does the government have infilling in the natural gaps that have arisen as a result of theway healthcare has been delivered, financed and utilizedover recent decades in the United States?

Some would argue that the role of serving the needs ofhealthcare in communities should be upon a variety ofsources rather than the federal government, including forexample, individuals, non-profit organizations, hospitals,and emergency rooms.101 Others would prefer that thefederal government take a more aggressive role inregulating these areas.102 Regardless of ideology, however,

101 See, e.g, Paul Ryan, Costs, Ethics & The Law: Essay: HealthCare Reform: The Way Forward, 25 NOTRE DAME J. L. ETHICS & PUB.POL'Y 337, 340 (2011) (discussing the government's growing role inhealth care and arguing against the Affordable Care Act); ElizabethWeeks Leonard, New Directions in American Health Care: Innovationsfrom Home and Abroad, Article: Rhetorical Federalism: The Value ofState-Based Dissent to Federal Health Reform, 39 HOFSTRA L. REV. 111(2010) (arguing for the repeal of the Affordable Care Act); Michael D.Tanner, Commentary: Universal Health Care Not Best Option, CATOINST. (Feb. 23, 2009), http://www.cato.org/publications/commentary/universal-health-care-not-best-option (reviewing the high cost ofuniversal health care).

102 See, e.g., Len M. Nichols, Making Health Markets Work BetterThrough Targeted Doses of Competition, Regulation, and Collaboration,5 ST. LOUIs U. J. HEALTH L. & POL'Y 7 (2011) (arguing the benefits of"structured competition" and collaboration in health care reform); JulieE. Kass & John S. Linehan, Note, Fostering Healthcare ReformThrough a Bifurcated Model of Fraud and Abuse Regulation, 5 J.

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the role of the community in the provision, delivery andreceipt of care is at the heart of the solution on both ends ofthe spectrum because most experts agree that home-basedand community-based care can lead to better healthoutcomes. 103 The Affordable Care Act is designed togenerate such accountability, with the hope that a dramaticshift in the way care is delivered will occur, that the qualityof care improves and that the overall cost of care willdecrease. 104

A. Comm unity Health Centers

The Affordable Care Act identified Federally-QualifiedHealth Centers, also known as "Community HealthCenters" as a primary way to impact local communities. 05

Although Community Health Centers ("CHC") have been

HEALTH & LIFE SCI. L. 75 (2012) (arguing for the government's increasedregulatory role in limiting fraud and abuse for health care costs).

103 See, e.g., Home - The Best Place for Health Care, A PositioningStatement from The Joint Commission on the State of the Home CareIndustry, JOINT COMM'N (Oct. 18, 2011),http://www.jointcommission.org/assets/1/18/HomeCare-position-paper4_5_11.pdf ("Just about everyone agrees: the home is the best setting forproviding health care to increasing numbers of patients"); Best Care atLower Cost, The Path to Continuously Learning Health Care inAmerica, Recommendations, INST. MED. (Sept. 2012),http://www.iom.edul-/media/Files/Report%20Files/2012/Best-Care/Best%20Care%20at%2OLower%2oCostRecs.pdf (including arecommendation about the importance of community accountability).

104 Aligning Forces for Quality, Improving Health & Health Care inCommunities Across America, ROBERT WOOD JOHNSON FOUND. (May2011), http://forces4quality.org/sites/default/files/AF4QBROCHUREm4WEBMay2011.pdf, Pamela Mitchell et al., CorePrinciples & Values of Effective Team -Based Health Care, INST. MED.NAT'L AcADs. (Oct. 2012), https://www.nationalahec.org/pdfs/VSRT-Team-Based-Care-Principles-Values.pdf.

105 Public Health Service Act, Pub. L. No. 78-410, § 330, 58 Stat.682 (1944) (codified as amended at 42 U.S.C. § 254b (2013)), amendedby Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, § 10406, 124 Stat. 119-1025 (2010) (codified as amended at 42U.S.C. § 254b-2 (2013)), amended by Healthcare and EducationReconciliation Act, Pub. L. 111-152, 124 Stat. 1029-84 (2010).

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part of community care delivery since 1965,106 the

Affordable Care Act made a deliberate economic investmentin the growth and expansion of these facilities.10 7 As part ofthis effort, the Affordable Care Act established funding toprovide $11 billion over a five-year period for the operation,expansion, and construction of Community Health Centersnationwide. 108 The purpose of the funding is to prepareCommunity Health Centers for what is expected to be anincrease in patients who are seeking care with their newinsurance coverage. 109

106 Kathleen Sebelius, Op-Ed, ACA Gets Care To Those In MostNeed, ALBUQUERQUE J. (Sept. 19, 2012),http://www.hhs.gov/secretary/about/opeds/acacaretothose.html("First established in 1965, today there are more than 8,500 communityhealth center sites across the country. . . ."); Roger Wilson, CommunityHealth Centers: Optometric Care within the Public Health Community,OLD POST PUB. (2009), available at http://webpages.charter.net/oldpostpublishing/oldpostpublishing/Section%203,%2OGovernmental%2ORole%20in%2OHealth%2OCare/Sect%203,%20Community%2OHealth%20Centers%20by%2OWilson.pdf (describing history and impact ofCommunity Health Centers); Sara Rosenbaum et al., CommunityHealth Centers in an Era of Health System Reform and EconomicDownturn: Prospects and Challenges, HENRY J. KAISER FAM. FOUND. 2(Mar. 2009), http://www.kff.org/uninsured/upload/7876.pdf ("In 2007,more than 1,200 health center grantees working in nearly 7,200 deliverysites throughout the nation furnished care to more than 16 millionpatients.").

107 Carolyn McClanahan, Community Health Centers -- ProvidingA Base Of Care, FORBES (July 16, 2012, 10:08 AM),http://www.forbes.com/sites/carolynmcclanahan/2012/07/16/community-health-centers-providing-a-base-of-care (describing Community HealthCenters as "hope for the newly insured").

108 HEALTH RES. AND SERVS. ADMIN., DEP'T HEALTH AND HUMANSERVS., THE AFFORDABLE CARE ACT AND HEALTH CENTERS,http://bphc.hrsa.gov/about/healthcenterfactsheet.pdf; Health ReformFAQs for Health Centers, NAT'L AsS'N CMTY. OF HEALTH CTRS.,http://www.nache.com/client/Health%20Reform%20FAQs%20-Final%20for%20Web.pdf.

109 Expanding Health Centers Under Health Reform: DoublingPatient Capacity and Bringing Down Costs, NAT'L AsS'N CMTY. HEALTHCTRS. (June 2010), http://www.nachc.com/client/HCRNewPatientsFinal.pdf [hereinafter NAT'L AsS'N CMTY. HEALTHCTRS., Expanding Health Centers]; Leighton Ku et al., Policy Brief No.19: Using Primary Care to Bend the Curve: The Effect of National

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Funding of Community Health Centers is not solely aproduct of the Affordable Care Act or of Democratic politics.Indeed, President George W. Bush doubled financing forthese organizations during his presidency. 110 The increasedfocus on, and patient visits to Community Health Centers isundisputed and dramatic.11 ' The Obama administrationalso has targeted Community Health Centers as a way toemphasize primary and preventive services in a model withunique characteristics.112 For example, these organizationsserve populations and communities with primaryhealthcare services, offering sliding fee scales based onpatients' ability to pay.113 The target population forCommunity Health Centers is those individuals located inrural areas, as well as the poor and underservedpopulations.114 Sometimes, logistical issues such as culturaldifference or language barriers can limit the overall

Health Reform on Health Center Expansions, GEIGER GIBSON / RCHNCMTY. HEALTH FOUND. RES. COLLABORATIVE (June 30, 2010).

110 Kevin Sack, Community Health Clinics Increased During BushYears, N.Y. TIMES (Dec. 26, 2008), http://www.nytimes.com/2008/12/26/world/americas/26iht-bush.1.18936658.html?_r=0 ("As governor ofTexas, Bush came to admire the missionary zeal and cost-efficiency ofthe not-for-profit community health centers, which qualify for federaloperating grants by being located in designated underserved areas andtreating patients regardless of their ability to pay. He pledged supportfor the program while campaigning for president in 2000 on a platformof 'compassionate conservatism."').

nI Irwin Redlener & Roy Grant, America's Safety Net and HealthCare Reform-What Lies Ahead? 361 NEw. ENGLAND J. MED. 2201,2203 (2009) (stating that during the time period between "June 2008and June 2009, visits to community health centers increased by 14%,and visits by uninsured patients by 21%").

112 The Obama Administration and Community Health Centers,WHITEHOUSE.GOV, http://www.whitehouse.gov/sites/default/files/05-01-12community-healthcenter-report.pdf.

113 Sara Rosenbaum et al., Community Health Centers in an Era ofHealth System Reform and Economic Downturn: Prospects andChallenges, HENRY J. KAISER FAM. FOUND. 2 (Mar. 1, 2009),http://www.kff.org/uninsuredl/uploadl/7876.pdf.

114 Id.; see generally NACHC Principles for National HealthReform, NAT'L AsS'N CMTY. HEALTH CTRS., http://www.nachc.com/client/NACHC%20Principles%20for%2ONational%2OHealth%2OReform.pdf.

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effectiveness of care. 1 15 However, the goal of a Community

Health Center is to provide a continuum of care approachthat includes physicians, nurse practitioners, physicianassistants, nurses, dental providers, midwives, behavioralhealthcare providers, social workers, health educators, andmany others.1 16

One of the expected shifts in the way care is delivered isa decrease in the number of charity care patients athospitals and emergency rooms and an increase in thenumber of previously uninsured who will be able to accessmedical care through Community Health Centers, whichwill now be able to get reimbursed for their expendituresrather than exist solely on meager fundraising efforts andsmall government grants.117 Under the Affordable CareAct, the estimated capacity in Community Health Centers isexpected to "increase considerably, helping to meet the new

115 See generally Efrat Shadmi, Quality of Hospital to CommunityCare Transitions: the Experience of Minority Patients, 25 INT'L J.QUALITY HEALTH CARE 255 (2013), http://intqhc.oxfordjournals.org/content/early/2013/04/08/intqhc. mzt03 1.abstract (last visited Dec. 28,2013); Paul M. Schyve, Language Differences as a Barrier to Qualityand Safety in Health Care: The Joint Commission Perspective, 22 J.GEN. INTERNAL MED. 360, 360-61 (2007), available athttp://www.ncbi.nlm.nih.gov/pmc/articles/PMC2078554/pdf/11606_2007Article_365.pdf.

116 See, e.g., Kathy Poppitt & Sheryl Tatar Dacso, FederallyQuahifed Health Centers: A Healthcare Delivery Model for a NewlyReformed Health System, 23 HEALTH LAW. 1, 3 (2010).

117 Rick Cohen, Community Health Centers Respond to ImpendingACA Changes, NONPROFIT Q. (Apr. 8, 2013, 2:25 PM),http://www.nonprofitquarterly.org/policysocial-context/22098-community-health-centers-respond-to-impending-aca-changes.html;Andrea Kovach & Rachel Gielau, The Great Medicaid Expansion of2014What it Is and How to Make it Succeed, 45 CLEARINGHOUSE REV. 388,395 (2012) ("Community health care providers will be vital to effectiveoutreach because, even when adults are uninsured, they are likely toseek care at a community health center, hospital emergency room, ordrug treatment center. Other avenues for outreach are unemploymentoffices, job-training centers or career fairs, community colleges, foodstamp offices, the Social Security Administration's SupplementalSecurity Income offices, charity care organizations such as food banksand domestic violence shelters, and local businesses.").

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demands for primary health care that are expected oncemore people have health insurance coverage." 118

A predictable response to the increased funding ofCommunity Health Centers follows: "This sounds great!But what is it going to cost? And who is going to pay for it?"

According to the National Association of CommunityHealth Centers, "research studies demonstrate that healthcenters yield substantial cost savings to the health caresystem by reducing emergency department visits,hospitalizations, and other avoidable, costly care."119 Thestudy relied upon by the National Association ofCommunity Health Centers suggests that the increasedfunding of Community Health Centers will actually resultin long-term savings to the federal healthcare program andoffer ways to address the increased demand for healthcareunder the Affordable Care Act:

Our findings indicate that the expansion ofcommunity health centers will play anessential role in addressing two of the long-term challenges of health reform: curbing thegrowth of overall health care expenditures andbolstering the capacity of the primary caresystem to meet the needs of the millions ofnewly insured Americans. 120

Indeed, this study further concludes that the role ofCommunity Health Centers is so crucial to effectivelymanaging healthcare costs for populations, that "theexpansion of health centers can reduce both federal andstate Medicaid expenditures." 12 1 The expansion ofCommunity Health Centers will also result in the creation

118 Ku et al., supra note 109, at 6.119 See NAT'L Ass'N CMTY. HEALTH CTRS., Expanding Health

Centers, supra note 109; see generally Ku et al., supra note 109.120 Ku et al., supra note 109, at 9.121 Id.

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of jobs for providers and other workforce at thesefacilities.122

While opposition remains to the increased emphasis inCommunity Health Centers, 123 the Affordable Care Act hastargeted these organizations as a fundamental way thatcare will be delivered in the twenty-first century. Byfocusing on local entities that provide care to the poor andunderserved, the Affordable Care Act is intentionallyrequiring community accountability.

B. Transitioning Patients from Hospitals Back to theCommunity

Another problem facing communities is the difficulttransition for inpatients from hospital care to another stageof post-acute care. When a patient is transferred from onehealthcare provider to another, the likelihood for re-admission or need for additional inpatient care remains acostly scenario for many patients and providers.124 Studiessuggest that between 18-20% of Medicare patients who areadmitted to acute care hospitals are later readmitted withinthirty days of discharge, at an estimated annual cost of as

122 See Community Health Centers Lead the Primary CareRevolution, NAT'L Ass'N CMTY. HEALTH CTRS. (Aug. 2010),http://www.nachc.com/client/documents/PrimaryCareRevolutionFina1_8_16.pdf.

123 See generally Dan Hawkins & DaShawn Groves, The FutureRole of Community Health Centers in a Changing Health CareLandscape, 34 J. AMBULATORY CARE MANAGE 91 (2011) (describing"often-powerful political opposition"); BONNIE LEFKOWITZ, COMMUNITYHEALTH CENTERS: A MOVEMENT AND THE PEOPLE WHO MADE IT HAPPEN12 (2007).

124 Marciarillet, supra note 43, at 44 ("It turns out that Medicarehospitalization recidivism is not one problem but a constellation ofinterlocking problems: primarily those of the failure to provide ongoingcare for the chronically ill, the problem of medically inappropriateprimary hospitalizations and rehospitalizations, and the failure toeffectively plan and deliver the services necessary for successfulcommunity re-entry upon acute care hospital discharge. Combine thesewith our systemic problems of failure to deliver primary care and thestandardless provision of health care and the recipe is complete.").

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much as $26 billion.125 Worse, within ninety days ofdischarge, the readmission percentage rises to 34%.126 Thismeans that statistically, one out of every three patients whoare transitioned out of a hospital will be back again withinthree months, and this is a considerable concern andfinancial burden for communities. Accountability fortransitioning care in a way that reduces readmissions is aresponsibility facing a number of participants in theprocess. 127

The Affordable Care Act attempts to address thefrequency of readmission in several ways. For example, theAffordable Care Act created a new Center for Medicare andMedicaid Innovation that will be tasked with identifyinglocal models that address a defined population with poorclinical outcomes or avoidable expenditures, and thenexpanding solutions nationwide.128 The Affordable Care Actalso funded research for, among other things, practicalmethods for reducing preventable hospital admissions andreadmissions.12 9 The Affordable Care Act also established aNational Pilot Program on Bundling beginning in 2013,which establishes a national, voluntary five-year pilotprogram on bundling payments to providers around tenconditions. 130

125 See Stephen F. Jencks et al., Rehospitalizations Among Patientsin the Medicare Fee-for-Service Program, 360 NEW ENG. J. MED. 1418,1421 (2009), available athttp://www.nejm.org/doi/pdf/10.1056/NEJMsa08O3563; see also Laura Landro, Keeping Patients fromLanding Back in Hospital, WALL ST. J. (Dec. 12, 2007, 12:01 AM),http://online.wsj.com/article/SB119741713239122065.html; see alsoMarciarillet, supra note 43, at 44-45, 80, n.17.

126 Jencks et al., supra note 125, at 1421.127 Douglas McCarthy et al., Recasting Readmissions by Placing the

Hospital Role in Community Context, 309 JAMA 351 (2013).128 Patient Protection and Affordable Care Act of 2010, Pub. L. No.

111-148, § 3021, 124 Stat. 119-1025 (2010) (codified as amended at 42U.S.C. § 300jj-51 (2013)).

129 Id. § 3501 (codified as amended at 42 U.S.C. § 299b-33 (2013)).130 Id. § 3023 (codified as amended at 42 U.S.C. § 1395cc-4 (2013)).

The Secretary of the Department of Health and Human Services selectsthe ten conditions to be included in the pilot program based upon acombination of chronic and acute conditions, surgical, and medicalconditions, and conditions where providers are able to improve quality

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The Affordable Care Act established the HospitalReadmissions Reduction Program, which is designed to offerhospitals a financial disincentive for readmissions.131Beginning in 2013, hospitals that have higher than expectedreadmissions based on the thirty-day readmission measuresfor heart attack, heart failure, and pneumonia will havetheir Medicare reimbursement decreased for all Medicaredischarged patients. 132 As a way to assist hospitals withhigh readmission rates, the Affordable Care Act alsoimplemented programs for Patient Safety Organizations toassist hospitals in the reduction of these readmissions. 133

These programs are focused upon hospitals' efforts toaddress the care transition problem, because hospitals areable to focus on those components that they are directlyresponsible for, including the quality of care during thehospitalization and their role in the patient dischargeprocess. However, there are multiple factors along the carecontinuum that impact readmissions, and focusingaccountability on the actions of post-acute care providers, aswell as the patients themselves are also important parts ofthe equation. Hospitals are not the sole cause ofreadmissions because "[certain conditions at discharge aredisproportionately represented in unplanned Medicarerehospitalizations."13 4

while reducing costs, that are able to be bundled across a spectrum ofcare.

131 Id. § 3025 (codified as amended at 42 U.S.C. § 1395ww (2013)).132 See Corrections to Final Rules Relating to Medicare, Hospitals,

and Other Healthcare Providers, 78 Fed. Reg. 15,822 (Mar. 13, 2013)(codified at scattered parts of 42 C.F.R.), see also ReadmissionsReduction Program, CTR. FOR MEDICARE & MEDICAID SERVS.http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcutelnpatientPPS/Readmissions-Reduction-Program.html (last visitedDec. 28, 2013).

133 Patient Protection and Affordable Care Act of 2010 § 399kk(codified as amended at 42 U.S.C. § 280j-3 (2013)).

134 Marciarillet, supra note 43, at 46-47 ("The top five medicalconditions generating the most readmissions concern: heart failure,pneumonia, chronic obstructive pulmonary disease, psychoses, andgastrointestinal problems.").

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Recognizing the varying roles of hospitals, patients, andpost-acute care providers in the transition process, theAffordable Care Act also established a Community-BasedCare Transitions Program ("CCTP)135 for improving caretransitions from the hospital to other settings and reducingreadmissions for high-risk Medicare beneficiaries. TheCCTP is particularly notable in its design as a deliberateway for hospitals and community organizations to becomeaccountable to one another. The CCTP is also part of apublic-private partnership, Partnership for Patients, 136

offering yet another program for encouraging communityaccountability to improve quality, reduce cost, and improvepatient experience.

The CCTP, launched in 2011, will run for five years withup to $500 million in funding available. 137 The goals of theCCTP are to improve transitions from the inpatient hospitalsetting to other care settings to improve quality of care, toreduce readmissions for high risk beneficiaries, and todocument measurable savings to the Medicare program. 138

The CCTP proposes to coordinate the efforts of local,community-based organizations ("CBOs") to manageMedicare patients' transitions out of hospitals and into thecommunity.13 9

Collectively, these efforts attempt to provide ways inwhich individuals and organizations can held accountable totheir communities. The Affordable Care Act's emphasis oncommunity accountability focuses specifically on ways thatthe poor and underserved are able to access care.

135 CCTP was created by Patient Protection and Affordable CareAct of 2010 § 3026 (codified as amended at 42 U.S.C. § 1395b-1 (2013)).

136 See Partnership for Patients, CTRS. FOR MEDICARE & MEDICAIDSERVS., http://innovation.cms.gov/initiatives/Partnership-for-Patients/index.html (last visited Dec. 28, 2013).

137 Community-Based Care Transitions Program, CTRS. FORMEDICARE AND MEDICAID SERVS., http://innovation.cms.gov/initiatives/CCTP/ (last visited Dec. 28, 2013).

138 Id139 Id.

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C. Accountability of Exempt Hospitals to TheirComm unities

The Affordable Care Act also addressed a growingconcern that tax-exempt hospitals are not held accountableto their communities.140 The concern derives from theperception that some non-profit hospitals operate and makedecisions like any for-profit business and yet receive asignificant tax break in their operations.141 For the pastseveral years, 501(c)(3) hospitals have been at the focus ofSenate Finance Committee's Charles Grassley's call foraccountability. 14 2 Senator Grassley, a Republican,identified a need for exempt hospitals to show that theydeserve their exemption.143 In a similar type ofaccountability dispute, Provena Covenant Medical Center

140 Thomas Lee Hazen & Lisa Love Hazen, Punctilios andNonprofit Corporate Governance -A Comprehensive Look at NonprofitDirectors' Fiduciary Duties, 14 U. PA. J. BUS. L. 347, 353 (2012) ("Aspecific example of the debate surrounding the federal tax exemption isthe concern in recent years that nonprofit hospitals are really disguisedfor-profit enterprises with an undeserved tax advantage."); see alsoScott Allen & Marcella Bombardieri, Much is Given by Hospitals, Moreis Asked, Nonprofits Reaping More in Tax Breaks than They Report inCharity Work. Some Say That Must Change, Bos. GLOBE, May 31, 2009,at 1; Lynnore Seaton & Beth C. Koob, Tax-Exempt Hospitals andCommunity Benefit, HEALTH LAW., June 2009, at 37, 38 (stating thatthere is "no clear guidance in the law as to what Congress considered tobe charitable, or what the motivations were for exempting charitableorganizations from taxation.").

141 Lynnore Seaton & Beth C. Koob, supra note 140, at 38.142 Memorandum from the U.S. Committee on Finance to Reporters

and Editors, Grassley: GAO Finds Troubling Nonprofit Hospitals'Executive Compensations (July 28, 2006), available athttp://www.finance.senate.gov/newsroom/chairman/release/?id=b43c8ad4-5201-410c-860d-b63ab8ec92d3 (last visited Dec. 28, 2013); see alsoLisa Kinney Helvin, Note, Caring for the Uninsured. Are Not-for-ProfitHospitals Doing Their Share?, 8 YALE J. HEALTH POL'Y L. & ETHICS 421,449 (detailing Senator Grassley's various inquiries into hospitalexemption).

143 Press Release, Senator Chuck Grassley, Grassley's Provisionsfor Tax-exempt Hospital Accountability Included in New Health CareLaw (Mar. 24, 2010), available at http://www.grassley.senate.gov/news/Article.cfm?customel dataPageIDj 502=25912 (last visited Dec. 28,2013).

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lost its state property tax exemption because it did notdemonstrate that it offered a substantial amount of medicalservices to the poor.144

Nationwide, about 2900 hospitals (60% of hospitals) arenon-profit, and the value of tax-exemption collectively forthese hospitals is more than $12.6 billion.145 In response,communities expect accountability from their local non-profit hospitals in the form of services in addition totraditional fee-for-service medical care. For example theseservices may include providing, below-cost medical servicesfor the poor, the availability of emergency room services andother medical services, access to free clinics andpreventative care, education of the public on medicalmatters, and involvement and financial support of localcharities.146

Exempt hospitals are "organized and operatedexclusively for . . . charitable . . . purposes" 14 7 and receivethe benefit of their exempt status in part based upon theperceived "community benefit" that they provide to theirlocalities.148 Prior to the Affordable Care Act and beginningwith the 2009 tax year, the Internal Revenue Service("IRS") introduced a revised Form 990, which sets up a

144 Provena Covenant Med. Ctr. v. Dep't of Revenue, 925 N.E.2d1131, 1144 (Ill. 2010).

145 Nonprofit Hospitals and the Provision of Community Benefits,CONG. BUDGET OFFICE 3, 5 (2006), available at http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/76xx/doc7695/12-06-nonprofit.pdf; see alsoWhat's New with Community Benefit., ROBERT WOOD JOHNSON FOUND.(Oct. 2012), http://www.rwjf.org/content/dam/farm/reports/issuebriefs/2012/rwjf402124.

146 Jim Doyle, Nonprofit Hospitals' Huge Tax Breaks UnderIncreasing Scrutiny, ST. LOUIs POST-DISPATCH (Oct. 23, 2011, 11:00PM), http://www.stltoday.com/business/local/article4a0dcdl7-40b3-589f-b0e7-c3dc14b62804.html.

147 Exemption from Tax on Corporations, Certain Trusts, Etc., 26U.S.C. § 501(c)(3) (2013).

148 Rev. Rul. 69-545, 1969-2 C.B. 117, available athttp://www.irs.gov/pub/irs-tege/rr69-545.pdf see generally INTERNALREVENUE SERV., IRS EXEMPT ORGANIZATIONS (TE/GE) HOSPITALCOMPLIANCE PROJECT FINAL REPORT (2009), available athttp://www.irs.gov/pub/irs-tege/frepthospproj.pdf.

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required and standardized method for all nonprofithospitals to report financial information. 149

The Affordable Care Act includes specific publicreporting obligations for hospitals to hold them accountableto their communities and to ensure that their exempt statusis deserved. 150 The Affordable Care Act creates a new §501(r) of the Internal Revenue Code, 151 detailing newrequirements for hospitals, which include the following:

1. Conduct a "community health needsassessment" ("CHNA") at least once everythree years and adopt a strategy to respond tothe needs identified by the assessment;

2. Establish written financial assistance policiesaddressing patient eligibility for financialassistance and emergency care;

3. Limit the amount charged to patients eligiblefor financial assistance for emergency ormedically necessary care to the amountgenerally billed for insured patients; and

4. Refrain from pursuing "extraordinarycollection actions" without first inquiringwhether a patient is eligible for financialassistance. 152

IRS published a proposed rule titled Community HealthNeeds Assessments for Charitable Hospitals, detailingreporting obligations for hospitals as part of the AffordableCare Act and clarifying the consequences for failing to meetthese and other requirements for charitable hospital

149 INTERNAL REVENUE SERV., DEP'T TREASURY, OMB No. 1545-0047, IRS FORM 990, RETURN OF ORGANIZATION EXEMPT FROM INCOMETAX (2012), available at http://www.irs.gov/pub/irs-pdf/f990.pdf.

150 Patient Protection and Affordable Care Act of 2010, Pub. L. No.111-148, § 9007, 124 Stat. 119-1025 (2010) (codified as amended atscattered sections of 26 U.S.C.).

151 Exemption from Tax on Corporations, Certain Trusts, Etc., 26U.S.C. § 501(r) (2013).

152 Id.; Patient Protection and Affordable Care Act of 2010 § 9007(codified as amended at scattered sections of 26 U.S.C.).

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organizations.153 At the heart of these new requirementsfor exempt hospitals is a standard of accountability thatrequires hospitals to demonstrate tangible, identifiablecommunity benefits in exchange for their tax exemption.The CHNA requirement holds hospitals accountable, atleast once every three years, for soliciting input fromcommunity representatives. 154 Once Hospitals complete theCHNA, they must make the assessment "widely available tothe public."155 Hospitals must adopt an implementationstrategy to meet the community health needs identified inthe health needs assessment must report to the InternalRevenue Service how the organization is addressing theneeds identified. 5 6

Hospitals must now adopt written financial assistancepolicies that establish clear criteria for how patients willreceive financial assistance. The written financialassistance policy must include (i) eligibility criteria forfinancial assistance and whether such assistance includesfree or discounted care, (ii) the basis for calculatingamounts charged to patients, (iii) the method for applyingfor financial assistance, (iv) in the case of an organizationwhich does not have a separate billing and collectionspolicy, the actions the organization may take in the event ofnonpayment, including collections action and reporting tocredit agencies, and (v) measures to widely publicize thepolicy within the community to be served by theorganization.157 Hospitals must also refrain from engagingin extraordinary collection efforts before making reasonableefforts to determine whether the individual from whom

153 Community Health Needs Assessments for CharitableHospitals, 78 Fed. Reg. 20,523 (proposed April 5, 2013) (to be codified at26 C.F.R. pts. 1, 53).

154 Exemption from Tax on Corporations, Certain Trusts, Etc., 26U.S.C. § 501(r)(3)(B)(i).

155 Exemption from Tax on Corporations, Certain Trusts, Etc., 26U.S.C. § 501(r)(3)(B)(ii).

156 Patient Protection and Affordable Care Act of 2010 § 9007(d)(codified as amended at 26 U.S.C. § 6033 (2013)).

157 Patient Protection and Affordable Care Act of 2010 sec.9007(a)(4), § 501(r)(4) (codified as amended at 26 U.S.C. § 501(r)(4)(2013)).

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collection is sought would be eligible for assistance underthe financial assistance policy.' 58

Of all the community accountability standardsestablished by the Affordable Care Act, the hospitalrequirements are perhaps the most comprehensive. Amajor goal of this provision is to hold hospitals accountablefor addressing any disparities in healthcare that existamong populations. 59 In response to years of questioningwhether hospitals deserve their tax-exempt status, theAffordable Care Act requires tax-exempt hospitals todemonstrate on an ongoing basis that they are in factproviding community benefits. Hospitals will assess whatspecific health needs their communities have, implementways to meet those needs, and will then report what theyare doing to the IRS. Any tax-exempt hospital that fails tocomply with these requirements will be subject to a $ 50,000excise tax.160

The Affordable Care Act offers several methods forimpacting care delivery in communities. CommunityHealth Centers address care for the poor and underserved,while other programs are designed to assist the transitionfrom an acute care provider to a post-acute care provider.Non-profit hospitals are now held accountable to monitorlocal health needs and report their activities to addressthese needs, or they will face financial penalties. The role ofvarious healthcare providers within the community inconnection with the provision, delivery and receipt of care isat the heart of the solution on both ends of the spectrum.Community-based care is at the heart of communityaccountability, with the hope that a dramatic shift in theway care is delivered will occur, that the quality of careimproves and that the overall cost of care will decrease.

158 Patient Protection and Affordable Care Act of 2010 sec.9007(a)(6), § 501(r)(6) (codified as amended at 26 U.S.C. § 501(r)(6)(2013)).

159 Mary Crossley, Tax-Exempt Hospitals, Community HealthNeeds and Addressing Disparities, 55 HOw. L.J. 687, 701 (2012).

160 Patient Protection and Affordable Care Act of 2010 § 9007(b)(codified as amended at 26 U.S.C. § 4959 (2013)).

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IV. ACCOUNTABILITY TO GOVERNMENT

Under the Affordable Care Act, regulators are now givenbroader enforcement authority to hold providers,practitioners, and patients accountable for the healthcarethat is delivered and healthcare services that are sought.Various mechanisms under the Affordable Care Act focussquarely on improving quality, efficiency, transparency andintegrity of the provision of healthcare in the UnitedStates.161 This increased accountability towardstransparency and integrity among providers andpractitioners works to ensure that, when the government ispaying for a service, it can hold these constituenciesresponsible for the care provided and the level oftransparency necessary to promote a more efficienthealthcare system.

Because the federal government finances a considerableportion of healthcare in the United States, it is necessaryfor the government to 'get its money's worth' by holdingparticipants accountable for the way monies are applied.162

Yet the manner of accountability is complicated. How canthe federal government provide necessary incentives tohealth insurance companies to ensure that they are focusingon patient needs rather than emphasizing profitability atthe patients' expense? What level of accountability isnecessary to ensure practitioners, patients, and providers donot abuse the reimbursement that is available from thefederal government? Has the Affordable Care Actimplemented mechanisms to ensure accountability isconsistent and fair?

161 See, e.g., Howard K. Koh & Kathleen G. Sebelius, PromotingPrevention through the Affordable Care Act, 363 NEW ENG. J. MED.1286 (2010); Robert P. Kocher & Eli Y. Adashi, Hospital Readmissionsand the Affordable Care Act: Paying for Coordinated Quality Care, 306JAMA 1794 (2011); Tom Baker, Health Insurance, Risk, andResponsibility after the Patient Protection and Affordable Care Act, 159U. PA. L. REV. 1577 (2011).

162 See generally Alyene Senger, Federal Spending on Health CareDoubles in the Next Decade, HERITAGE FOUND. (Feb. 1, 2012, 3:18 PM),also available at http:/I/blog.heritage.org/2012/02/01/federal-spending-on-health-care-doubles-in-the-next-decade/.

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Although there are numerous ways in which theAffordable Care Act generates greater accountability, thegovernment is holding health insurers, healthcare entities,physicians, and other providers accountable to create amore transparent healthcare system. First, the AffordableCare Act focuses on several matters that directly change theway that health insurance companies can do business. 163

These provisions aim to ensure that health insurers arefirst and foremost accountable to their enrollees rather thantheir investors. Second, the Affordable Care Actimplemented general fraud and abuse standards thatimpact many different healthcare actors who interact withfederal healthcare programs. These new laws, funding, andprograms act as general mechanisms to ensure healthcareparticipants are being compliant with the laws and makingdecisions that are in the best interest of all healthcareparticipants. Finally, the Affordable Care Act specificallyimplements laws and programs in which physicians aretargeted. Ultimately, these laws aim to develop fewerconflicts and more transparency among physicians'decisions.

A. Health Insurer Accountability

Under the Affordable Care Act, the federal governmentis in the process of implementing sweeping changes, whichmay yield a considerably higher level of transparency andintegrity between the federal government and healthinsurance companies. 164 The need for accountability arises

163 See e.g., Guaranteed Availability of Individual Health InsuranceCoverage to Certain Individuals with Prior Group Coverage, 42 U.S.C. §300gg-41(a)(1) (2013); Group Health Plans and Health InsuranceIssuers Relating to Coverage of Preventive Services Under the PatientProtection and Affordable Care Act, 77 Fed. Reg. 8725 (Feb. 15, 2012);Patient Protection and Affordable Care Act of 2010 § 10406 (codified asamended at 42 U.S.C. § 13951(2013)); Patient Protection and AffordableCare Act of 2010 § 2719 (codified as amended at 42 U.S.C. § 300gg-19(2013)); Patient Protection and Affordable Care Act of 2010 § 1331(codified as amended at 42 U.S.C. § 18051 (2013)).

164 See e.g., Jeffrey T. Kul1gren et al., A Census of State HealthCare Price Transparency Websites, 309 JAMA 2437 (2013); Anne Weiss,

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within insurer functions such as pricing, communicationwith enrollees, communication with providers, coverageissues, and a multitude of other instances. For example,health insurers, prior to the Affordable Care Act, usedvarious tactics to deny coverage for an episode of care. Thismeant that a patient who was enrolled with a specifichealth insurer and who required an expensive form of care(which the insurer should cover) was denied coverage forthe specific episode of care. Previously, the appeals processfor such denials was not defined by federal law, but this haschanged under the Affordable Care Act.

Another example of transparency and integrity is theconcept of minimum coverage for insurance policies. Healthinsurance packages varied among insurers and products,and many times high-cost care would be covered by a basicpolicy but basic preventive care would not be covered. Insome cases, an individual may assume that a routinecheckup was covered, but the individual learned when thebill arrived that the basic preventative checkup was notcovered under the policy. Variations on these types ofproblems have created a multitude of situations in whichhealth insurance companies needed to be more transparentand accountable.

Health insurance pre-Affordable Care Act operated inways in which it was not as necessary for the consumer tobe actually involved in the financing process becauseemployers generally shouldered this burden. 165 In fact, asof 2004, approximately 60% of the U.S. population receivedhealth insurance coverage through their employers. 166

Transforming Care Through Transparency, HEALTH AFF. BLOG (Oct. 5,2012), http://healthaffairs.org/blog/2012/10/05/transforming-care-through-transparency/; U.S. GOVT ACCOUNTABILITY OFF., GAO-11-791,REPORT TO CONGRESSIONAL REQUESTERS: HEALTH CARE PRICETRANSPARENCY: MEANINGFUL PRICE INFORMATION Is DIFFICULT FORCONSUMERS TO OBTAIN PRIOR TO RECEIVING CARE (2011), available athttp://www.gao.gov/new.items/d11791.pdf.

165 Thomas Bodenheimer & Kevin Grumbach, Paying for HealthCare, 272 JAMA 634, 635-36 (1994).

166 Paul Fronstin, Uninsured Unchanged in 2004, but Employment-Based Health Coverage Declined, 26 EMP. BENEFIT RES. INST. NOTES 2(2005).

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However, individuals seeking to purchase insurance on theopen market without the benefit of employer-sponsoredcoverage have long faced problems.16 7

For example, insurers often used the mechanism ofpreexisting conditions to refuse coverage to consumers onthe individual market because those conditions increase thelikelihood of claims.168 This resulted in a health insurancesystem in which consumers relied heavily on employersbecause they would be covered even with preexistingconditions169, while consumers in individual markets wouldnot. This obstacle along with price transparency helped todevelop a health insurance system in which there was littleaccountability between the government, insurers, andconsumers.

To remedy the problem facing consumers seeking topurchase non-employer sponsored insurance coverage, theAffordable Care Act implemented several strategies thathelp curb this lack of accountability among the government,insurers, and consumers. First, the Affordable Care Actadded several consumer protections for when consumers

167 Michelle M. Doty et al., Failure to Protect: Why the IndividualInsurance Market is Not a Viable Option for Most US. Families, 63COMMONWEALTH FUND 1 (2009), http://www.commonwealthfund.org/-/media/Files/Publications/Issue%20Brief/2009/Jul/Failure%20to%2OProtect/1300_Doty-failure-to-protectindividualinsmarketibv2.pdf,Mary Mahon et al., New Report: Individual Health Insurance MarketFailing Consumers, COMMONWEALTH FUND (July 21, 2009),http://www.commonwealthfund.org/-/media/Files/News/News%20Releases/2009/Jul/Failure%20to%2OProtect%20PR%20FINAL%2072109%20rev2.pdf. ("Seventy-three percent of people who tried to buy insurance ontheir own in the last three years did not purchase a policy, primarilybecause premiums were too high. In addition, among adults withindividual coverage or who tried to buy coverage in the past three years,57 percent said it was very difficult or impossible to find coverage theycould afford, 47 percent said it was very difficult or impossible to find aplan with the coverage they needed, and 36 percent were deniedcoverage or charged more because of a pre-existing condition, or had thecondition excluded from their coverage.").

168 James P. Baker, Equal Benefits for Equal Work? The Law ofDomestic Partner Benefits, 14 LAB. LAW. 23, 45 (1998).

169 Guaranteed Availability of Individual Health InsuranceCoverage to Certain Individuals with Prior Group Coverage, 42 U.S.C. §300gg-41(a)(1) (2013).

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deal with the insurance industry.170 In particular, there arenow prohibitions on placing lifetime limits on coverage andon rescinding coverage once the limit has been met, whichavoids the problem of loss of coverage for a high-cost healthissue.171

For example, a toddler in need of a heart transplantexhausted her $1 million lifetime maximum on herinsurance policy after three weeks.172 As another example, ateenager diagnosed with a form of leukemia in 2007 reachedhis maximum limit in less than a year and was left with theoption of a $600,000 deposit or $500,000 payment for a bonemarrow transplant. 173 Although the family raised thenecessary amount of funds, the young man died before hecould receive the transplant.174 This problem is not ananomaly, because according to the Henry J. Kaiser FamilyFoundation, 22% of employees have caps of less than $2million. 75

Next, with respect to the coverage of preventive benefits,the Affordable Care Act operates to hold more insurersaccountable for covering the basic needs of individuals.176

According to a study performed by Northwestern Universityfaculty and students in 2008, "many insurers choose not tocover preventive care and other treatments that have high

170 Patient Protection and Affordable Care Act: PreexistingCondition Exclusions, Lifetime and Annual Limits, Rescissions, andPatient Protections, T.D. 9491, 75 Fed. Reg. 37,188 (June 28, 2010)(codified at 26 C.F.R. pts. 54, 602, 29 C.F.R. pt. 2590, 45 C.F.R. pts. 144,146, 147).

171 Id.172 Tom Murphy, Patients Struggle with Health Insurance Caps,

L.A. TIMES (July 14, 2008), http://articles.latimes.com/2008/jul/14/business/fi-lowcaps14.

173 Health Insurance Caps Leave Patients Stranded,NBCNEWS.COM, http://www.nbenews.com/id/25644309/ns/health-healthcare/t/health-insurance-caps-leave-patients- stranded/#.UgfBNZK2M64 (last updated July 13, 2008, 1:29:36 PM).

174 Id.175 Id.176 Group Health Plans and Health Insurance Issuers Relating to

Coverage of Preventive Services Under the Patient Protection andAffordable Care Act, 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012).

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up-front costs."177 Beginning on September 23, 2010, healthinsurance companies are now required to provide minimumcoverage that includes preventive care.178 In addition,many preventive services now are required to waive anycoinsurance payments that were previously required.179 Asof 2013, the Affordable Care Act has extended freepreventive care to 71 million Americans. 80

Another additional consumer protection promotingaccountability relates to insurance coverage appealsprocesses.181 In particular, group health plan and healthinsurance issuers are now required to implement effectiveappeals processes allowing the enrollee notice and thechance to review their file.182 A 2008 study by the AmericanMedical Association found that between 2.65% and 6.8% ofclaims were denied;183 however such denials often lackedany sort of notification or appeals process, which often led toreversals.184

177 Pat Vaughan Tremmel, Study Seeks Win-Win for InsuranceCoverage for Preventive Care, NW. UNIV. NEWSCENTER (Jan. 15, 2008),http://www.northwestern.edu/newscenter/stories/2008/01/insuranceprev.html.

178 See Key Features of the Affordable Care Act by Year, U.S. DEP'T

HEALTH & HUMAN SERVS., http://www.hhs.gov/healthcare/facts/timeline/timeline-text.html (last visited Jan. 13, 2014).

179 Patient Protection and Affordable Care Act of 2010, Pub. L. No.111-148, § 10406, 124 Stat. 119-1025 (2010) (codified as amended at 42U.S.C. § 13951(2013)).

180 Press Release, DEP'T HEALTH & HUMAN SERVs., Affordable CareAct Extended Free Preventive Care to 71 Million Americans withPrivate Health Insurance (Mar. 18, 2013), available athttp://www.hhs.gov/news/press/2013pres/03/20130318a.html (lastrevised Aug. 5, 2013).

181 Patient Protection and Affordable Care Act of 2010 § 2719(codified as amended at 42 U.S.C. § 300gg-19 (2013)).

182 Guaranteed Availability of Individual Health InsuranceCoverage to Certain Individuals with Prior Group Coverage , 42 U.S.C.300gg-19.

183 TV Ad Overstates Health Insurance Denials, POLITIFACT.COM(Sept. 18, 2009, 3:57 PM), http://www.politifact.com/truth-o-meter/statements/2009/sep/18/health-care-america-now/ty-ad-overstates-health-insurance-denials/.

184 See generally U.S. GOv'T ACCOUNTABILITY OFF., GAO-11-268,REPORT TO THE SECRETARY OF HEALTH AND HUMAN SERVICES AND THE

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The claim denial process was a problem because it leftmany individuals with little options but to pay for their careout-of-pocket. For example, a school administrator wasdenied coverage for her arthroscopic surgery when sheunderwent the surgery for bone spurs. 85 The total bill forthe surgery was $21,225.186 Although the patient waseventually able to settle with the insurance company forless than the total cost, claim denial processes are asubstantial issue with 100 million claims being initiallydenied per year.187

The Affordable Care Act implemented the minimummedical loss ratio for insurers to avoid perceived moneygrabs by insurance companies.188 In particular, thisrequires health plans to report the proportion of premiumsspent on services for enrollees and providing a rebates toenrollees if the share of the premium spent on services isless than 85%. 189 The primary goal of this provision is toallow enrollees benefits, or rebates, when the services thatwere provided were less than 85% of the premiums paid.This requirement allows the government to provideadditional accountability on health insurers to spendpremiums'9 0 on services to enrollees rather than corporateor shareholder benefits. Although this issue is controversial

SECRETARY OF LABOR: PRIVATE HEALTH INSURANCE DATA ONAPPLICATION AND COVERAGE DENIALS (2011), available athttp://www.gao.gov/new.items/d11268.pdf.

185 Walecia Konrad, Fighting Denied Claims RequiresPerseverance, N.Y. TIMES (Feb. 5, 2010), http://www.nytimes.com/2010/02/06/health/06patient.html?pagewanted=all&_r=0.

186 Id.187 Id.188 Patient Protection and Affordable Care Act of 2010, Pub. L. No.

111-148, § 1331, 124 Stat. 119-1025 (2010) (codified as amended at 42U.S.C. § 18051 (2013)).

189 42 U.S.C. 18051 (2013).190 See generally Obamacare in Three Words: Saving People Money,

WHITEHOUSE.GOV (July 18, 2013), http://www.whitehouse.gov/share/health-care-rebate ($500,000,000 in rebates were provided back toenrollees during 2012).

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to some,191 the end goal is to create a more accountable andtransparent health insurance system.

B. Fraud and Abuse Promoting Accountability

The Affordable Care Act implemented several programsand laws in which the focus was on high-risk areas of fraudand abuse within healthcare. For fiscal year 2011, theOffice of Inspector General was responsible for $4.1 billionin recoveries, a global number that may not seemsignificant but its impact on individual providers can besubstantial.192 Fraud and abuse has been a primary issuefor the federal government over the past twenty years; 93

however the Affordable Care Act implemented new effortsfor increased enforcement and laws in which high-risk areasare further deterred from.194

With respect to the high-risk areas, the Affordable CareAct implemented several laws in which durable medical

191 Robert Book, Obama Touts False Benefits of Health InsuranceRebates, FORBES (July 18, 2013, 7:19 PM), http://www.forbes.com/sites/theapothecary/2013/07/18/obama-touts-false-benefits-of-health-insurance-rebates/ (explaining that the rebates are "not really savings -because the MLR, perhaps unintentionally, actually encourages insuresto increase premiums").

192 DEP'T OF HEALTH AND HUMAN SERVS. & DEP'T OF JUSTICE,HEALTH CARE FRAUD AND ABUSE CONTROL PROGRAM ANNUAL REPORTFOR FIsCAL YEAR 2011 (2012), available athttp://oig.hhs.gov/publications/docs/hcfac/hcfacreport201l1.pdf.

19s See generally Jennifer Staman, CONG. RESEARCH SERV.,RS22743, HEALTH CARE FRAUD AND ABUSE LAWS AFFECTING MEDICAREAND MEDICAID: AN OVERVIEW (2010) ("A number of federal statutes aimto combat fraud and abuse in federally funded health care programssuch as Medicare and Medicaid. Using these statutes, the federalgovernment has been able to recover billions of dollars lost due tofraudulent activities."), available at http://www.adea.org/documents/Sectionl/(1.3. 1)-Anti-Kickback-Statute.pdf see also Aaron M. Altschuleret. al., Health Care Fraud, 35 AM. CRIM. L. REV. 841, 843 (1998); Ann W.Morrison, An Analysis of Anti-Kickback and Self-Referral Law inModern Health Care, 21 J. LEG. MED. 351, 354 (2000).

194 T.R. Goldman, Eliminating Fraud and Abuse, HEALTH AFF.(July 31, 2012), http://healthaffairs.org/healthpolicybriefs/briefpdfs/healthpolicybrief_72.pdf.

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equipment ("DME") is curbed. 195 DME is reimbursedthrough Medicare Part B and includes such items asdiabetic testing strips, canes, crutches, hospital beds,suction pumps, and many other types of equipment used toaid in an individual's care. 196 This is a high-visibility areain terms of potential fraud, as Medicare spent more than$10 billion in 2009 on DME, and more than half wasimproperly spent.197 Home healthcare is similarly ripe withopportunities for fraud and abuse. 198 Other high-risk areasfocused on were hospice fraud and nursing home fraud. Byfocusing on these high-risk areas, the Affordable Care Actdeliberately operates to hold organizations accountable fornecessary, but proper, care and to further the idea oftransparency in healthcare.

In particular, the Affordable Care Act is designed toinhibit providers and companies from committingfraudulent acts at the outset. One way to accomplish thisgoal is to require more 'face-to-face' encounters at thebeginning of a patient relationship. Previously, there weremany ways in which fraud would occur in situations whereface-to-face encounters were not a prerequisite to payment.Fraud occurred when DME companies provided DME to'patients' who had died, or when DME suppliers providedequipment that was never requested. 199 As recently as July2013, the Justice Department charged a DME supplier forMedicare fraud in relation to over $11 million in fraudulentbillings.200

195 Patient Protection and Affordable Care Act of 2010, Pub. L. No.111-148, § 6407, 124 Stat. 119-1025 (2010) (codified as amended at 42U.S.C. §§ 1395f, 1395m, 1395n (2013)).

196 Your Medicare Coverage: Durable Medical Equipment (DME)Coverage, MEDICARE.GOV, http://www.medicare.gov/coverage/durable-medical-equipment-coverage.html (last visited Dec. 28, 2013).

197 Durable Medical Equipment Fraud, NEB. DEP'T OF HEALTH ANDHUMAN SERVS., http://dhhs.ne.gov/medicaid/Documents/FactSheetDMEFraud.pdf.

198 Patient Protection and Affordable Care Act of 2010 § 6407(codified as amended at 42 U.S.C. §§ 1395f, 1395m, 1395n (2013)).

199 Id.200 Press Release, 13-840, U.S. DEP'T OF JUSTICE, Owner of

California Medical Equipment Supply Company Found Guilty of $11Million Medicare Fraud Scheme (July 24, 2013), available at

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However, now, in order for an individual to receive DME,the individual must have a face-to-face encounter with aphysician, nurse practitioner, clinical nurse specialist, or aphysician assistant.201 Such a simple requirementeliminates opportunities to provide DME to dead patients orto patients who never wanted the DME at all. This law alsoapplies to home health services in which an individual mustreceive orders for home health services from a physician.202

In hospice facilities, the Affordable Care Act implemented arequired visit pursuant to which a practitioner must certifythat the resident is eligible for hospice through a face-to-face meeting.203

Finally, the Affordable Care Act also brought aboutchanges intended to reduce opportunities for fraud innursing homes. In particular, skilled nursing facilitiesmust now operate a compliance program, and backgroundchecks are required for direct patient access employees. 204

Although these high-risk areas required changes to addressaccountability and transparency among healthcare entities,the Affordable Care Act also brought about changes gearedtoward all providers and practitioners that interact withfederal healthcare programs.

With respect to funding to enforce fraud and abuse laws,the Affordable Care Act has increased funding to identifyand prosecute potential fraudulent activity. One of theprimary mechanisms is an increase in funding for fraudenforcement efforts for the decade following enactment.205

Between 2011 and 2020, the Affordable Care Act has

http://www.justice.gov/opa/pr/2013/July/13-crm-840.html (last visitedDec. 28, 2013) ("The trial evidence showed that [the defendants]submitted more than $11 million in fraudulent claims from Ibon andBonfee to Medicare for expensive, high-end power wheelchairs, hospitalbeds, braces and other DME that customers either did not need orreceive.")

201 Patient Protection and Affordable Care Act of 2010 § 6407(codified as amended at 42 U.S.C. §§ 1395f, 1395m, 1395n (2013)).

202 Id.203 Id. § 3132 (codified as amended at 42 U.S.C. § 1395f (2013)).204 Id. § 6201 (codified as amended at 42 U.S.C. § 1320a-7](2013)).205 Id. § 6402 (codified as amended at 5 U.S.C. § 552a (2013) and

scattered sections of 42 U.S.C.).

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increased funding by $10 million annually. 206 In addition,the Affordable Care Act provided mandatory appropriationsof $1.7 billion in both 2010 and 2011 to fund fraudenforcement through various agencies. 207 These actionshave greatly increased the enforcement mechanisms tocatch fraud and abuse in federal healthcare programs.What is the goal of all of this spending? Recovery ofadditional funds to help pay for portions of the AffordableCare Act. 20 8

In addition to funding, additional laws were created withrespect to Anti-Kickback violations. The Anti-KickbackStatute is a powerful fraud enforcement mechanism becauseit relates to knowing violations in which people ororganizations are seeking to commit fraud against federalhealthcare programs. 209 The statute prohibits knowinglyand willfully paying or receiving payments for any serviceor treatment when the payment is made by a federallyfunded healthcare program such as Medicare or

206 Id.207 Hearing on Efforts to Combat Health Care Fraud and Abuse

Before the Subcomm. on Labor, Health and Human Servs., Education,and Related Agencies H Comm. on Appropriations, 111th Cong. (2010)(statement of William Corr, Deputy Secretary, U.S. Department ofHealth and Human Services.), available athttp://www.hhs.gov/asl/testify/2010/03/t20100304a.html (last revisedJune 18, 2013).

208 See id. ("The Obama administration is focused on reducing allimproper payments in federal programs, whether the result of criminalintent, greed or inefficiencies. So the Fiscal Year (FY) 2011 BudgetRequest to the Congress covers all types of fraud and abuse, as well asother categories of improper payments. With this funding request, wewill be adding resources to law enforcement and program oversight, aswell as to program integrity operations in the Centers for Medicare &Medicaid Services (CMS). To demonstrate our commitment, the FY 2011Budget includes a record $1.7 billion to fight waste, fraud, and otherimproper payments. This includes $561 million in discretionary funding,a $250 million increase over FY 2010. Projecting this discretionaryinvestment over 10 years, together with new program authorities andadministrative actions proposed in the budget, will save nearly $25billion in Medicare and Medicaid expenditures over 10 years.").

209 See generally Criminal Penalties for Acts Involving FederalHealth Care Programs, 42 U.S.C. § 1320a-7b(b) (2013).

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Medicaid. 210 This criminal act can result in a conviction ifthe defendant knowingly and willfully, solicits or receivesremuneration in return for a referral. 211 Because this is acriminal penalty, the penalties consist of $25,000 andimprisonment for up to five years for each offense. 212 Likemany of these laws, there are many safe harbor provisionscovering a variety of arrangements, including investmentinterests, sales of practices, malpractice insurance,contracts for space or equipment, advertisements andpromotions, and many others. 213 However, even the Anti-Kickback Statute can be tough to enforce because of therequirement to show knowing or willful violations.

The Affordable Care Act added a slight change to howthe Anti-Kickback Statute applies, resulting in an easierroad to establishing Anti-Kickback claims. In particular,the Affordable Care Act amends the Anti-Kickback Statuteto provide that "a claim that includes items or servicesresulting from a violation constitutes a false or fraudulentclaim for purposes of the" False Claims Act. 2 14 Anyviolation of the Anti-Kickback Statute will now transforminto a False Claim under the False Claims Act. This isimportant because it opens up the door to whistleblowerprovisions provided under the False Claims Act in whichindividuals may bring actions on behalf of the government(and share in any monetary recovery).215 To put theimportance of this into perspective, the federal government

210 Id.211 Id.212 Id.213 Exceptions, 42 C.F.R. § 1001.952(a) (2013).214 Patient Protection and Affordable Care Act of 2010, Pub. L. 111-

148, § 6402, 124 Stat. 119-1025 (2010) (codified as amended at 5 U.S.C.§ 552a (2013) and scattered sections of 42 U.S.C.).

215 False Claims Act, 31 U.S.C. §§ 3729-33 (2013). See generallyGeneva Campbell, Comment: Snitch or Savior? How the ModernCultural Acceptance of Pharmaceutical Company Employee ExternalWhistleblowing is Reflected in Dodd-Frank and the Affordable Care Act,15 U. PA. J. Bus. L. 565 (2013); Timothy Stoltzfus Jost, Optimizing QuiTam Litigation and Minimizing Fraud and Abuse: A Comment onChristopher Alexion's Open the Door, Not the Floodgates, 69 WASH. &LEE L. REV. 419 (2012).

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has recovered nearly $22 billion under the False Claims Actbetween 1987 and 2008.216 Not only did the Affordable CareAct expand the ease in which a violation of the Anti-Kickback Statute may constitute a false claim, but theAffordable Care Act creates a stronger enforcement vehicleunder the False Claims Act to pursue potentialoverpayments as well.

Under the False Claims Act pre-Affordable Care Act, thepublic disclosure bar prohibited individuals from filing suitsbased on fraudulent activity unless that individual was theoriginal source of the information that provided thefoundation of the suit.217 Under the Affordable Care Act,this concept was narrowed. In particular, these types ofsuits are barred now only when the same allegations werealready publicly disclosed in a federal criminal,administrative, or civil hearing, or another form of federalhearing or investigation, or by the media.218 In addition,the original source definition was broadened to include anyindividual who has knowledge that is "independent andmaterially adds to the publicly disclosed allegations ortransactions and who voluntarily provided the informationto the government."219 By widening the road forwhistleblowers, the Affordable Care Act will broaden thescope of claims brought under the False Claims Act.

C. Physician Accountability and Conflicts ofInterest

In addition to the focus on health insurers, high-riskareas, and general fraud and abuse provisions, theAffordable Care Act has extended the focus of accountabilityand transparency to physicians. This expansion centersupon physician-owned hospitals, physician investmentinterests, disclosure requirements regarding the Stark Law,

216 U.S. DEP'T OF JUSTICE, FRAUD STATISTICS 1986-2008, availableat http://www.justice.gov/opalpr/2008/November/fraud-statisticsl986-2008.htm (last visited Dec. 29, 2013).

217 31 U.S.C. §§ 3729-33.218 Patient Protection and Affordable Care Act of 2010 § 10104(j)(2)

(codified as amended at 31 U.S.C. § 3730 (2013)).219 31 U.S.C. § 3730.

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and prescription drug samples. 220 These provisions focus ona higher level of transparency within the practice ofmedicine, and an attempt to limit conflicts of interest.Although other laws such as the Stark Law and the Anti-Kickback Statute work to curb such abuses, these additionalprovisions provide substantial movement forward in a moretransparent and accountable system.

With respect to physician-owned hospitals, thesefacilities expanded rapidly from 2002 to 2010.221

Specifically, there were forty-six physician-owned hospitalsin 2002, and that number ballooned to 265 by 2010.222 "Foryears critics have complained that when doctors invest inhospitals, conflicts of interest arise that could endangerpatients and threaten the survival of general hospitals."2 23

The issue is divisive, and others argue that physician-ownedhospitals provide valuable tax revenue to the government.The Physician Hospitals of American reported that eachphysician-owned hospital paid $3 million per year intaxes.224 Although the issue of whether physicians shouldown hospitals has many critics on both sides, Congress, inpassing the Affordable Care Act, effectively decided thatphysicians could no longer own hospitals.225

Under the Affordable Care Act, new physician-ownedhospitals are forbidden, and existing physician-ownedhospitals generally can no longer expand their facilitycapacity; however, hospitals may still be owned even afterthe law if they have a provider agreement prior to February

220 See generally Patient Protection and Affordable Care Act of2010 §§ 6001-05 (codified as amended at 42 U.S.C. §§ 1395nn, 1320a-7h,1320a-7i, 1320b-23 (2013)).

221 MEDICARE PAYMENT ADVISORY COMM'N, REPORT TO THECONGRESS: PHYSICIAN-OWNED SPECIALTY HOSPITALS REVISITED 3-4(2006), available athttp://www.medpac.gov/documents/Aug06_specialtyhospital-mandated-report.pdf.

222 Id at 6.223 Should Doctors Own Hospitals?, BLOOMBERG Bus. WK. (Feb. 19,

2006), http://www.businessweek.com/stories/2006-02- 19/should-doctors-own-hospitals.

224 Id. at 7.225 Patient Protection and Affordable Care Act of 2010 § 6001

(codified as amended at 42 U.S.C. § 1395nn (2013)).

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2010.226 This prohibition on the expansion or ownership ofphysician-owned hospitals largely dealt with conflict ofinterest issues. 227

In addition to prohibiting physician-owned hospitals, thegovernment has also attempted to deter conflicts ofinterests with respect to physicians' investment interests. 228

This includes additional reporting requirements forphysicians regarding their investment and ownershipinterests because physicians receive different forms ofremuneration that may create conflicts of interest frommedical device and pharmaceutical companies. 229 Medicaldevice and pharmaceutical companies must now reportannually any investment and ownership interests aphysician might have. 230 The Affordable Care Act alsorequires that any gifts from medical device andpharmaceutical companies to physicians must bereported.231 This largely is meant to curb any conflicts thatmay arise when gifts may create an allegiance to a specificprovider even though such supplies and services may not bemedically necessary. 232

Physician accountability and transparency is alsotargeted with respect to medical imaging services. Underthe Affordable Care Act, disclosure is required forphysicians regarding medical imaging services that areexcluded from the Stark in-office ancillary services

226 Id.227 See generally Joshua E. Perry, Physician-Owned Specialty

Hospitals and the Patient Protection and Affordable Care Act: HealthCare Reform at the Intersection of Law and Ethics, 49 AM. BUS. L.J. 369(2012).

228 Patient Protection and Affordable Care Act of 2010 § 6002(codified as amended at 42 U.S.C. § 1320a-7h (2013)).

229 Id.230 Id.231 Id. § 6004 (codified as amended at 42 U.S.C. § 1320a-7i (2013)).232 See generally INST. OF MED., CONFLICT OF INTEREST IN MEDICAL

RESEARCH, EDUCATION, AND PRACTICE (Bernard Lo & Marilyn J. Field,eds., 2009); MEDICARE PAYMENT ADVISORY COMM'N, REPORT TO THECONGRESS: REFORMING THE DELIVERY SYSTEM (2008), available athttp://www.medpac.gov/documents/jun08_entirereport.pdf.

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exception. 233 Now, physicians that have ownershipinterests in these services must notify referred patients inwriting of that interest. 234

These provisions regarding physicians have manydifferent aims. First, physicians ultimately control theservices patients require. Although there is a substantialamount of trust with physicians, the Affordable Care Actacts to curb any forms of conflict that may arise.Ultimately, by limiting potential conflicts, the governmentis attempting to create more accountability by thesedecision-makers. Second, the government recognized thatsteps such as these may be necessary to' create a moretransparent healthcare system. In part, these laws forcephysicians and other providers to make decisions dependenton whether a procedure is medically necessary rather thanwhether there are questions of allegiance, investment, orownership interests. Finally, the ultimate goal is to developa system in which patients, the government, and insurerscan rely on physicians to make the right decisions.

Under the Affordable Care Act, third party payors,physicians, and many parties that interact with thehealthcare system are now being held more accountable bythe federal government. With respect to health insurancecompanies, the programs and laws implemented under theAffordable Care Act have far reaching implications foraccountability and transparency within the insuranceindustry. In addition, the Affordable Care Act has alsostrengthened many of the existing fraud and abuse lawsand added additional funding to curb healthcare fraudacross the spectrum of healthcare participants. Finally, thefocus on physicians is aimed at developing a transparentdecision making process based on the best decision for thepatient with the hope of eliminating conflicts. By creatingtransparency among insurers and physicians, and bystrengthening the fraud abuse enforcement mechanisms,the federal government is now able to hold all healthcare

233 Patient Protection and Affordable Care Act of 2010 § 6003(codified as amended at 42 U.S.C. § 1395nn (2013)).

234 Id.

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participants more accountable for their decisions in hopes ofa more transparent and efficient system.

V. ACCOUNTABILITY AMONG PROVIDERS

A. A Brief History-US. Health System as a FragmentedModel

The Affordable Care Act's idea of accountabilityencourages collaboration and requires providers to share inthe costs and risks associated with health outcomes of acommunity of patients. However, the idea of an accountablegroup or large organization was less systematic andcoordinated prior to the enactment and roll out of theAffordable Care Act.23 5 The story of the Americanhealthcare system is one of many actors attempting todeliver care to patients throughout the country with littlecoordination. 2 36 The United States healthcare system prior

235 Arthur Garson, Jr., The US Healthcare System 2010, 101 J. AM.HEART Ass'N 2015 (2000), available at http://circ.ahajournals.org/content/101/16/2015.full.pdf+html ("Ten years ago, the US healthcare systemwas declared 'broken,' and it has not improved. Fixes promised bymanaged care have not materialized. Premiums are rising. Hassles forpatients and physicians abound. Nearly 45 million Americans areuninsured.").

236 Cathy Schoen et al., US. Health System Performance: ANational Scorecard, 25 HEALTH AFF. 457 (2006), available athttp://content.healthaffairs.org/content/25/6/w457.full.pdf. The authorsexplain that "[cloordination of care is particularly critical duringtransitions following hospital discharge. Yet hospitalized patients inthe United States are less likely to have medications reviewed whendischarged than is the case in several other countries. Across theUnited States, patients discharged from the hospital with CHF receivewritten discharge instructions only 50 percent of the time, on average,and there is an eighty-percentage-point spread between the top andbottom 10 percent of hospitals and a forty-percentage-point spreadbetween the top and bottom 10 percent of states (64 percent versus 26percent, data not shown). Patients hospitalized for mental healthconditions often do not receive follow-up care within thirty days ofdischarge. On both CHF and mental illness indicators, there is a gap oftwenty to thirty percentage points between national averages and ratesachieved by the top group of hospitals or health plans. Theseshortcomings put patients at risk for complications and readmissionsand raise the cost of care." Id.

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to the Affordable Care Act was disjointed and lacked thesecoordination and systematic accountability components.This lack of accountability and coordination reached to allproviders, including hospitals, physicians, nursepractitioners, physician assistants and other healthcareproviders.

Under the model of healthcare delivery pre-AffordableCare Act, the healthcare system created many inefficienciesand complexities. 23 7 For example, in some areas of thecountry, Medicare spending was lower at the same timethat a higher quality of care and better outcomes wereachieved. 238 Largely, these differences in geographic areasled some to argue that additional spending in higher costregions was a product of greater use of hospitals, morefrequent referrals and greater use of testing and minorprocedures. 239

In addition to the inefficiencies in overall costsregionally, U.S. healthcare spending highlights levels ofwaste in areas in which better coordination andaccountability can reduce spending.240 Estimates suggestthat up to $520 billion in savings are possible due tohospital inefficiencies, unnecessary care, uncoordinatedcare, and avoidable care. 241 In a study developed by theCenters for Disease Control and Prevention, it wasestimated that the healthcare system lacked focus onserious preventive care services, which could prevent heart

237 E.A. McGlynn et al., The Quality of Health Care Delivered toAdults in the United States, 348 NEw ENG. J. MED. 2635 (2003)(acknowledging the complex fragmented healthcare delivery system).

238 Katherine Baicker & Amitabh Chandra, Medicare Spending, thePhysician Workforce, and Beneficiaries' Quality of Care, 23 HEALTHAFF. w184 (2004), available at http://content.healthaffairs.org/content/early/2004/04/07/hlthaff.w4.184.full.pdf.

239 CONG. BUDGET OFFICE, GEOGRAPHIC VARIATION IN HEALTH CARESPENDING (2008).

240 Waste Measurements, ECONOMIST (June 17, 2011, 3:02 PM),http://www.economist.com/blogs/dailychart/2011/06/us-health-care-spending.

241 Id.

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disease and increased cancer risk.2 42 The overall lack offocus on preventive care, increasing accountability, anddecreasing inefficiencies has resulted in many of theproblems that compelled the clamoring for greater reform.

However, one of the largest problems with the pre-healthreform delivery system related to the responsibility andaccountability of individual providers to each other. Forexample, according to the Medical Group ManagementAssociation, nearly 70% of physicians were in their ownpractices rather than in hospitals in 2005.243 Physiciansoften preferred the independence associated with their ownpractices rather than to be subject to the oversight of thelarge local hospital, which increasingly is a subsidiaryorganization to a much larger health system entity.Independence and collaboration are often at a crossroads.

This lack of collaboration may have been to thedetriment of coordinated care, but collaboration and costcontainment may not carry the link that was assumed.Consolidation of physician practices has yet to yield lowercosts. 244 In fact, in many areas, consolidation may beincreasing coordination of care but also increasing the costsof healthcare. 245

Another day-to-day operational issue among providers isthe necessary collaboration between physicians, nursepractitioners, and physician assistants. 246 With anadditional 30 to 33 million newly-insured people seeking

242 CTRS. FOR DISEASE CONTROL AND PREVENTION, USE OF SELECTEDCLINICAL PREVENTIVE SERVICES AMONG ADULTS - UNITED STATES, 2007-2010, (2012), available at http://www.cdc.gov/mmwr/pdflother/su6102.pdf.

243 Gardiner Harris, More Doctors Giving Up Private Practices,N.Y. TIMES (Mar. 25, 2010), http://www.nytimes.com/2010/03/26/healthlpolicy/26dos.html?pagewanted=all&_r=0.

244 Id.245 Robert A. Berenson et al., Unchecked Provider Clout in

California Foreshadows Challenges to Health Reform, 29 HEALTH AFF.1, (2010), available at http://content.healthaffairs.org/content/early/2010/02/25/hlthaff.2009.0715.full.pdf.

246 Lora Hine, Nurse Practitioners Help ill Critical Shortage ofHealth Care Professionals, CHRON (June 21, 2013), available athttp://www.chron.com/health/article/Nurse-practitioners-help-fill-critical-shortage-4614372.php (last updated June 21, 2013, 11:34 AM).

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care once the Affordable Care Act is fully implemented in2016, more people will be sitting in waiting rooms of doctor'soffices for appointments. 24 7 With this increase in patients,physician groups and other trade organizations have alsoanalyzed their ability to provide care. 24 8 According to theAssociation of American Medical Colleges, there will be ashortage of 91,500 physicians by 2020, resulting in variouspractitioners needing to work together to servicecommunities. 249 Overall, the Affordable Care Act hasimpacted a system in which nurse practitioners andphysician assistants previously had less autonomy. But thenew populations seeking care will require these non-physician practitioners to work and collaborate withphysicians.

Passage of the Affordable Care Act means that millionsmore people are covered, but will there be enough providersto take care of these additional patients? 250 Do we expandthe scope of practice for other practitioners such asphysician assistants or nurse practitioners? Do we changereimbursement models to include other providers asprimary care providers? Should physicians lead thespecialists in the delivery of care? These questions eachhave divisive answers from all sides. The Affordable CareAct charged through these roadblocks and acted as animpetus to ensure that these different providers worktogether to better coordinate care for millions across thecountry.

247 See Rachel Nardin et al., The Uninsured After ImplementationOf The Affordable Care Act: A Demographic And Geographic Analysis,HEALTH AFF. BLOG (June 6, 2013), http://healthaffairs.org/blog/2013/06/06/the-uninsured-after-implementation-of-the-affordable-care-act-a-demographic-and-geographic-analysis/.

248 Physician Shortages to Worsen Without Increases in Residencyraining, Am. AsS'N MED. Cs., https://www.aamc.org/download/286592/

data/.249 Id.250 David Troxel, Op-Ed., Doctor Shortage Looms in Health Care

Reform, LiveScience (June 14, 2013, 6:14 PM),http://www.livescience.com/37468-doctor-shortage.html.

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B. Promoting Accountability Among Providers

The enactment of the Affordable Care Act has resultedin several areas that impact, either directly or indirectly,the accountability of providers and practitioners. Directly,the Affordable Care Act works to strengthen primary carefor the communities that providers serve. The impact onprimary care requires providers to be accountable forpreventing healthcare events rather than simply treatingillnesses and events once they occur. Also, by strengtheningprimary care, the Affordable Care Act has brought to theforefront delivery models in which providers must worktogether to care for patients through patient centeredmedical homes. Finally, the Affordable Care Actimplemented incentives for physicians, nurse practitioners,and other providers to choose primary care rather thanother higher paying specialties addressing the currentfragmentation among provider specialties.

With respect to patient care models, the Affordable CareAct strengthens cooperation and collaboration amongproviders by incentivizing teamwork and accountability.One of the primary examples of these types of modelsincludes increased funding for community health centers. 251In many community health centers, providers arereimbursed at the same rates, unlike in other settings, andteamwork, accountability, and collaboration are the onlyeffective means in which these organizations can servicetheir communities. Finally, one of the largest and mostwell-known changes that impacts the accountability andcollaboration of providers relates to the implementation ofaccountable care organizations. 2 52 In these organizations,the goals is to align incentives so that providers can share

251 Public Health Service Act, Pub. L. No. 78-410, § 330, 58 Stat.682 (1944) (codified as amended at 42 U.S.C. § 254b (2013)), amendedby Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, § 10406, 124 Stat. 119-1025 (2010) (codified as amended at 42U.S.C. § 254b-2 (2013)), amended by Healthcare and EducationReconciliation Act, Pub. L. 111-152, 124 Stat. 1029-84 (2010).

252 Patient Protection and Affordable Care Act of 2010 § 3022(codified as amended at 42 U.S.C. § 1395jjj (2013)).

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in the savings brought about by higher quality and morecoordinated care.

C. Strengthening 'Primary Care"

The Affordable Care Act has instituted collaboration andaccountability among providers and practitioners throughvarious incentive programs that strengthen primary care.By strengthening primary care services in the healthcaresystem, the Affordable Care Act implemented a standard ofservices that will provide substantial benefits to facilitatingcoordination across the continuum of care. Through thefunding of patient centered medical homes, new paymentmodels and additional funding for the training of manydifferent practitioners, the Affordable Care Act acts to reachthese goals.

"Primary care" is a term often misunderstood by thepublic, although most patients commonly experience itwhenever they receive treatment from a family physician.If someone has ever sought treatment for symptoms of theflu, needed routine tests, or required education regardinghis or her healthcare, he or she has likely experienced"primary care." One definition is that "primary care is theprovision of integrated, accessible health care services byclinicians who are accountable for addressing a largemajority of personal health care needs, developing asustained partnership with patients, and practicing in thecontext of family and community."253 However, otherdefinitions are much more expansive, such as the definitionfrom the American Academy of Family Physicians:

Primary care is that care provided byphysicians specifically trained for and skilled

253 COMM. ON THE FUTURE OF HEALTH CARE WORKFORCE FOR OLDERAMS., INST. MED. OF THE NAT'L ACADEMIES, Retooling for an AgingAmerica: Building the Health Care Workforce 27 (2008), available athttp://www.iom.edu/-/media/Files/Report%20Files/2008/Retooling-for-an-Aging-America-Building-the-Health- Care-Workforce/ReportBriefRetoolingforanAgingAmericaBuildingtheHealthCareWorkforce.pdf.

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in comprehensive first contact and continuingcare for persons with any undiagnosed sign,symptom, or health concern (the"undifferentiated" patient) not limited byproblem origin (biological, behavioral, orsocial), organ system, or diagnosis. Primarycare includes health promotion, diseaseprevention, health maintenance, counseling,patient education, diagnosis and treatment ofacute and chronic illnesses in a variety ofhealth care settings (e.g., office, inpatient,critical care, long-term care, home care, daycare, etc.). Primary care is performed andmanaged by a personal physician oftencollaborating with other health professionals,and utilizing consultation or referral asappropriate. Primary care provides patientadvocacy in the health care system toaccomplish cost-effective care by coordinationof health care services. Primary care promoteseffective communication with patients andencourages the role of the patient as a partnerin health care.2 54

Here, this definition specifically refers to the role ofphysicians. However, the role of primary care and thevarious types of healthcare providers delivering that care issubstantially changing.

The Affordable Care Act's first method of strengtheningprimary care and accountability of providers deals with theimplementation and support of patient-centered medicalhomes. The Affordable Care Act established a Center forMedicaid and Medicare Innovation to develop care models"promoting broad payment and practice reform in primarycare, including the patient-centered medical home

254 Primary Care, AM. ACAD. FAM. PHYSICIANS,http://www.aafp.org/online/en/home/policy/policies/p/primarycare.html(last visited Dec. 29, 2013).

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models."255 This promotes models in which "a closerelationship between care coordinators, primary carepractitioners, specialist physicians, community-basedorganizations, and other providers of services and suppliers"can work together. 256

In particular, patient-centered medical homes "includeenhanced patient access to a regular source of primary care,stable and ongoing relationships with a personal clinicianwho directs a care team, and timely, well-organized healthservices that emphasize prevention and chronic caremanagement."257 This concept, although fluid in its processand delivery, has been estimated to reduce spending by anestimated $175 billion through 2020.258 Generally though,the patient-centered medical home concept develops strongaccountability and collaboration between various providers.

One of the first patient-centered medical home practicesites was set in the State of Washington. 259 The Journal ofAmbulatory Care Management published a case studyabout the implementation of such a concept. 260 The modelwas spread to a set of twenty-six primary care practices infourteen months, reaching more than 600,000 patients andranging to both urban and rural settings.261 The variousclinics implemented staffing changes, which increased theroles of physician assistants, nurse practitioners, registered

255 Patient Protection and Affordable Care Act of 2010§ 3021(a)(codified as amended at 42 U.S.C. § 1315a (2013)).

256 Id.257 Karen Davis et al., supra note 76, at 1201-03.258 The Path to a High Performance US. Health System: A 2020

Vision and the Policies to Pave the Way, COMMONWEALTH FUND COMM'NON HIGH PERFORMANCE HEALTH SYs. (2009),http://www.commonwealthfund.org/~/media/Files/Publications/Fund%20Report/2009/Feb/The%2OPath%20to%20a%2OHigh%20Performance%20US%20Health%2System/1237Commission-path-highperformUS-ht_sysWEBrev_03052009.pdf.

259 Clarissa Hsu et al., Spreading a Patient-Centered Medical HomeModel, 35 J. AMBULATORY CARE MGMT. 99, available athttps://primarycare.hms.harvard.edulsites/default/files/J%2Amb%20Care%20Mgmt%202012%2OCase%2Study-1.pdf (last visited July 18,2013).

260 Id.261 Id. at 100-01.

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nurses, and pharmacists, in general nearly doubling theirnumbers in practices led by physicians. 262

In another report analyzing the results of a patient-centered medical home, the Commonwealth Fundformulated a report discussing a pilot project inPennsylvania. 26 3 After one year of the study, impressiveimprovements showed a 20% reduction in hospitaladmissions and a 12% reduction in readmission rates. 264

One impediment to the establishment of such homes is thatof collaboration 265 among providers; however the amount ofcollaboration and accountability among providers hasincreased substantially, and, under the guidance of theAffordable Care Act, this accountability among providershas yielded impressive results.

Another avenue in which the Affordable Care Act hasboth strengthened primary care and institutedaccountability among providers is through incentives tomultiple types of primary care practitioners. First, theAffordable Care Act instituted accountability amongproviders by defining "primary care provider" in profession-neutral terms (i.e., not only physicians). Under theAffordable Care Act, a "primary care provider" means:

a clinician who provides integrated, accessiblehealth care services and who is accountable foraddressing a large majority of personal healthcare needs, including providing preventive andhealth promotion services for men, women,and children of all ages, developing asustained partnership with patients, andpracticing in the context of family and

262 Id. at 101-05.263 Hearing on 'Person -Centered Care: Reforming Services and

Bringing Older Citizens Back to the Heart of Society" Before the SpecialS. Comm. on Aging, 110th Cong. (2008) (Invited testimony by MelindaK. Abrams, Assistant Vice President, The Commonwealth Fund).

264 Id.265 See Andis Robeznieks, Sore Subject: Nurses React as AAFP

Report Backs Doctor-Led Medical Homes, ModernHealthcare.com (Oct.6, 2012), http://www.modernhealthcare.com/article/20121006/MAGAZINE/310069966.

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community, as recognized by a State licensingor regulatory authority, unless otherwisespecified in this section. 266

This is significant because one step in developing a systemin which providers and practitioners work together relatesto defining those providers.

D. Payment Models Promoting Accountability AmongProviders

However, payment models also impact the ways in whichproviders will work together to strengthen primary care anddevelop more accountability among their team. TheAffordable Care Act created the Incentive PaymentProgram for Primary Care Services. 267 This paymentincentive applies to primary care physicians specializing infamily medicine, internal medicine, geriatric medicine, orpediatric medicine. 268 It also applies to nurse practitioners,clinical nurse specialists, and physician assistants whoprovide at least 60% of their charges in primary care.26 9 Inother words, physicians and non-physicians are targeted forthe incentive.

The payment incentive provides a 10% increase inpayment for primary care practitioners for allowableprimary care services. 270 By aligning incentives amongvarious providers, the implementation of payment incentiveprograms ultimately requires various practitioners to beaccountable to one another in the provision of primary careservices.

In addition to increased reimbursements that incentivizeprovider cooperation and collaboration, the Affordable Care

266 Patient Protection and Affordable Care Act of 2010, Pub. L. No.111-148, § 5405, 124 Stat. 119-1025 (2010) (codified as amended at 42U.S.C. § 280g-12(a)(3)(B) (2013)) (emphasis added).

267 Id. § 5501(a) (codified as amended at 42 U.S.C. §§ 13951, 1395m,1395w-4 (2013)).

268 Id.269 Id.270 Id.

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Act implemented various funding opportunities forincreasing the healthcare workforce.271 First, funding forthe National Health Service Corps was permanentlyauthorized. 272 In particular, the funding allows studentloan repayments for physicians, dentists, nursepractitioners, midwives, and physician assistants whomagree to serve in designated Health Professional ShortageAreas. 273 These areas include both rural and underservedareas in which providers are accountable to one another formaintaining the health of communities in which healthservices are scarce. 274

Also, the Affordable Care Act implemented funding forprimary care training programs for physicians, nursepractitioners, and physician assistants.275 First, theAffordable Care Act authorized grants to support trainingprograms to create academic units to enhanceinterdisciplinary training for both physicians and physicianassistants. 276 These training programs apply to medicalschools and physician assistant training programsassociated with academic institutions.277 Also, theAffordable Care Act specifically included funding for nursepractitioner training programs to increase nursepractitioners in the workforce. 278 The goal is two-fold.First, this inevitable relates to increasing the workforce, butmore importantly the Affordable Care Act addresses that

271 C. STEPHEN REDHEAD ET AL., CONG. RESEARCH SERV., R41390,DISCRETIONARY FUNDING IN THE PATIENT PROTECTION AND AFFORDABLECARE ACT (2011), available at http://www.ncsl.org/documents/health/DisFundingACA.pdf.

272 Patient Protection and Affordable Care Act of 2010 § 5207(codified as amended at 42 U.S.C. § 254q (2013)).

273 Id.274 See generally Shortage Designation: Health Professional

Shortage Areas & Medically Underserved Areas/Populations, HEALTHRES. & SERVS. ADMIN., U.S. DEP'T HEALTH & HUM. SERVS.,http://www.hrsa.gov/shortage/ (last visited Dec. 29, 2013).

275 Patient Protection and Affordable Care Act of 2010 §§ 5301,5312 (codified as amended at 42 U.S.C. §§ 293k, 298d (2013)).

276 Id. § 5301 (codified as amended at 42 U.S.C. § 293k (2013)).277 Id278 Id. § 5312 (codified as amended at 42 U.S.C. § 298d (2013)).

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multiple providers must be trained in primary care toservice communities together.

Finally, the Affordable Care Act authorized family nursepractitioner demonstration programs.2 79 Under thesedemonstration programs, nurse practitioners will be trainedas primary care providers in Federally Qualified HealthCenters and Nurse-Managed Health Clinics. 280 The HealthResources and Services Administration explained that thissupport in Nurse-Managed Health Clinics will "improveaccess to primary care . . . [and] serve as primary careaccess points in areas where primary care providers are inshort supply."281 These demonstration programs furtherhighlight the Affordable Care Act's incentives to createaccountability among various practitioners.

E. Organizational Accountability

In addition to the Affordable Care Act incentivizingteamwork and accountability among practitioners throughpayment models and training programs, the AffordableCare Act also addresses accountability throughincentivizing organizations to challenge practitioners tocollaborate and provide care more efficiently with oneanother. In particular, the Affordable Care Act focusedefforts on organizational change to promote accountabilitynot only between individual practitioners and theiremployers, but also between the practitioners themselves.The Affordable Care Act does this in two important ways.First, the Affordable Care Act has instituted changethrough additional funding for CHCs. Second, theAffordable Care Act has developed new methods of caredelivery through the creation of ACOs.

279 Id. § 5316 (codified as amended at scattered sections of 42U.S.C.).

280 Id.281 See Nurse Managed Health Clinics (NMHC), HEALTH RES. &

SERVS. ADMIN., U.S. DEP'T HEALTH & HUM. SERVS.,http://bhpr.hrsa.gov/nursing/grants/nmhc.html (last visited Dec. 29,2013).

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According to the Health Resources and ServicesAdministration, CHC's "have become the essential primarycare medical home for millions of Americans including someof the nation's most vulnerable populations." 282 Specifically,the Affordable Care Act authorizes operating grants toCHCs throughout the United States to furnishcomprehensive primary care services to patients, regardlessof their ability to pay.28 3 Facilities such as these offer asubstantial opportunity to facilitate change in the ways inwhich practitioners interact and provide accountability toone another. For example, according to the Center forStudying Health System Change, FQHCs support thisinteraction "especially through their primary care teams ofphysicians and midlevel providers, such as nursepractitioners - and PPACA provisions will likely supporttheir continued role."284

Finally, the Affordable Care Act institutionalized a caremodel that requires practitioners and providers to beaccountable to one another. This care model is known as anACO developed under the Medicare Shared SavingsProgram. 285 Indeed, the word "accountable" itself isembedded within the very name of this model. This isnotable because it highlights the level of focus placed onaccountability.

The goal of ACOs in the Medicare Shared SavingsProgram is for "groups of providers of services and suppliersmeeting criteria specified by the Secretary [to] worktogether to manage and coordinate care for Medicare fee-for-service beneficiaries through an accountable care

282 The Affordable Care Act and Health Centers, HEALTH RES. &SERVS. ADMIN., U.S. DEP'T HEALTH & HUM. SERVS.,http://bphc.hrsa.gov/about/healthcenterfactsheet.pdf.

283 Patient Protection and Affordable Care Act of 2010, Pub. L. No.111-148, § 5601, 124 Stat. 119-1025 (2010) (codified as amended at 42U.S.C. § 254b (2013)).

284 Aaron Katz et al., A Long Winding Road- Federally QualifiedHealth Centers, Community Variation and Prospects Under Reform, 21CENTER FOR STUDYING HEALTH SYS. CHANGE: RES. BRIEF 1, (2011),available at http://www.hschange.com/CONTENT/1257/1257.pdf.

285 Patient Protection and Affordable Care Act of 2010 § 3022(codified as amended at 42 U.S.C. § 1395jjj (2013)).

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AcCOUNTABILITY PARTNERS

organization."286 However, the definition of an ACO is afluid concept in that there are multiple approaches.Generally, though, according to the National Institute forHealth Care Reform, "ACOs will constitute groups ofproviders-physicians, other clinicians, hospitals or otherproviders-that together provide care and shareaccountability for the cost and quality of care for apopulation of patients."287

Some associate the ACO model with current businessmodels in different industries. Harold Miller, president andCEO of the Network for Regional Healthcare Improvementand executive director of the Center for Healthcare Quality& Payment Reform in Pittsburgh, explains that we should"think of it as buying a television" in that:

A TV manufacturer like Sony may contractwith many suppliers to build sets. Like Sonydoes for TVs . . . an ACO would bring togetherthe different component parts of care for thepatient - primary care, specialists, hospitals,home health care, etc.2 88

However, Miller notes, "ACOs will need to prove that theoverall health care product they're creating does workbetter and costs less in order to encourage patients andpayers to buy it."289

The ACO model is unique in that it provides "financialincentives for broad cost containment and quality

286 Id.287 Timothy K. Lake et al., Lessons from the Field: Making

Accountable Care Organizations Real, NAT'L INST. FOR HEALTH CAREREFORM (Jan. 2011), available at http://www.niher.org/Accountable-Care-Organizations.html.

288 Jenny Gold, FAQ On ACOs: Accountable Care Organizations,Explained, KAISER HEALTH NEWS (Aug. 23, 2013),http://www.kaiserhealthnews.org/Stories/2011/January/13/ACO-accountable-care-organization-FAQ.aspx.

289 Id.

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performance across multiple sites of care."2 90 Thus there isnow a financial incentive for primary care providers,specialists, and hospitals to work in a more integrated andcost-effective way. This includes new payment approachesaimed at sharing the cost between multiple providersending in one common billing approach.291 Generally, anACO will share responsibility for treating a group ofpatients. These shared and collective approaches create asystem built on changing the way healthcare is delivered inthe United States.

The National Institute for Health Care Reform analyzedseven healthcare organizations developing as ACOs. In thisstudy, the organizations included "three integrated deliverysystems, one physician-hospital organization (PHO), twomedical groups - one large and one small group owned by ahospital - and one management services organization(MSO) affiliated with four independent practiceassociations."292 The study itself analyzed some of themajor challenges that current systems are facing whenattempting to transition to the ACO model. However, it isimportant to note that each of these organizations are quitedifferent from one another, highlighting the flexibilityneeded when transitioning to an ACO model.

Nonetheless, the study resulted in four major challengesto these changes. First, funding was a major issue for eachof these systems. 293 The main problem is that the"improvements required substantial investment, both intime and money. Many funded these activities throughexisting reserves, while others . . . applied for and receivedgrant funding."294 This creates a risk where certain systemsdo not have the capital to make these changes, and whereothers have utilized grant allocation to the maximumpossible degree. Second, these organizations experienced a

290 Marsha Gold, Accountable Care Organizations. Will TheyDeliver., MATHEMATICA POL'Y RES., INC. 1 (2010), available athttp://www.mathematica-mpr.com/publications/pdfs/health/account-care-orgs brief.pdf.

291 Id.292 Lake et al., supra note 287.293 Id.294 Id.

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huge amount of resistance to change.295 Generally, this isan internal issue that is challenging within anyorganization that is changing. However, the model itselfnecessitates change.

Other challenges facing the transition were potentialdisruptions to productivity and limited infrastructure topursue these changes. 296 The issue of disruptions toproductivity was a major issue because the process requiredchanges in workflow and different staff responsibilities. 2 97

Additionally, infrastructure issues were fueled by the lackof ability to measure and track performance. 298 Systemsexplained that it was necessary to use reliable data at alltimes; however, privacy issues required legal advice tocontinue with the transition. 299 Nonetheless, throughoutUnited States healthcare history, there have been varyingmodels aimed at minimizing costs. This current modelrepresents a major transition and the first step towardsreaching the goal of accountability among providers,practitioners, and organizations.

A more recent report regarding the Pioneer ACOProgram described the successes and pitfalls of some of thefirst ACOs organized under the Affordable Care Act. 300

Under the Pioneer ACO Program, thirty-two ACOs wereformed to provide care for more than 669,000beneficiaries. 3 01 Overall, under these ACOs, costs grew by0.3% in 2012 compared to 0.8 for similar beneficiaries. 3 02

These ACOs earned over $76 million for their efforts in cost

295 Id.296 Id.297 Id.298 Id.299 Id.soo Press Release, Ctrs. for Medicare & Medicaid Servs., Details for

YYtle: Pioneer Accountable Care Organizations Succeed in ImprovingCare, Lowering Costs (July 16, 2013) [hereinafter Press Release,CMMS], available at http://www.cms.gov/Newsroom/MediaReleaseDatabase/Press-Releases/2013-Press-Releases-Items/2013-07-16.html (last visited Dec. 29, 2013).

301 Id.; Lake et al., supra note 287.302 Press Release, CMMS, supra note 301; Lake et al., supra note

287.

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savings; however two ACOs shared losses totaling $4.0million.303

Although the fragmented United States healthcaresystems continues to experience change, the AffordableCare Act helped institute more accountability among themany players in the healthcare service industry. TheAffordable Care Act implemented laws that impact the wayteams of providers work together to provide care. Inaddition, primary care has been a focus point within thelegislation that further allows providers the ability to worktogether and remain accountable to each other. Finally, theAffordable Care Act provides the proper incentive throughpayment models and organizational accountability toinfluence drastic changes in the ways in which providers,practitioners, and organizations interact.

VI. CONCLUSION

The public's perception of the Affordable Care Actcentered around the "hot button" issues. These included the"individual mandate," whether the federal government hadthe constitutional authority to require citizens to purchasehealth insurance, issues of health insurance exchanges andemployer participation in health insurance. Aside fromthese more public topics, the subtle shift toward anaccountable system designed to lower cost and improvequality appears to be lost in this debate, or at the very leastmuffled. Also missing in this conversation is the very wordin which the legislation was designed to symbolize:"accountability."

In many ways, the Affordable Care Act's aims are moreabout requiring accountability among healthcareparticipants than about the publicly-discussed issues inwhich talk shows have developed sound bytes and politicalparties have been divided. Of all of the changes effectuatedunder the Affordable Care Act, accountability will becomethe benchmark for evaluating whether providers, patients,and the federal government have pursued the proper course

303 Press Release, C1IMS, supra note 301; Lake et al., supra note287.

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in the twenty-first century. It is these lesser-known"accountability" provisions that offer the hope of shifting thehealthcare system into a more efficient and accountableorganism. The need for decreasing costs, increasing quality,and expanding access can only be met with accountabilitybecause, without groups partnering together, patientsholding their providers accountable, and the governmentensuring a more transparent system, the integrity of thehealthcare system cannot be maintained. The hope of animproved, sustainable healthcare delivery system, whereimproved healthcare is available for individuals and largerpopulations at a per-capita lower cost, is built upon asustainable foundation: accountability.